Volume 137 — Michigan Reports

Case by. Josephine Bedier McMillan against Denis J. ■Reaume, Hiram D. Willmarth, and Jay Fuller for fraud in the sale of real estate. From a judgment for plaintiff, defendants bring error. The circumstances and facts upon which the present suit is based are sufficiently stated in the three former decisions of this court based upon the same transaction.

<p>Error to Cass; Carr, J.</p> <p>Replevin by John Clute against Charles Everhart. Erom a judgment for plaintiff, defendant brings error.</p>

Clair; Law, J. Case by Joseph Friesenhan against Harrison W. Mainesfor false imprisonment. From a judgment for plaintiff for nominal damages only, he brings error. This is an action upon the case for false imprisonment. The essential facts are as follows: On Friday, January 31, 1902, one Mrs. Halliday, who lives in Sanilac county, with her daughter Mrs. Norris, of Port Huron, called on the defendant, who was then the sheriff of St. Clair county.

Bill by Jesse R. Cropsey, executor of the last will and testament of Melvin Williams, deceased, against Frank P. Johnston, trustee, Malcolm B. Williams, and others, for an accounting. From a decree for complainant, the above-named defendants appeal.

Bill by David A. Smith, highway commissioner of Marengo township, against the Jackson & Battle Creek Traction Company, to enjoin the maintenance of an electric railway. From an order sustaining a demurrer to the bill, complainant appeals. The following are the allegations and prayer of the bill filed in this case: 1.

Assumpsit by Ida H. Bigelow, administratrix of the estate of Lewis Bigelow, deceased, against Samuel Stearns and others, for the breach of a covenant against incumbrances. From a judgment for plaintiff on verdict directed by the court, defendants bring error.

Replevin by Kops Brothers Company against Stephen B. Smith, doing business as S. B. Smith & Co. From a judgment for defendant on verdict directed by the court, plaintiff brings error. The plaintiff in this case is a corporation of the State of Illinois, and carrying on the business of selling pianos, with head offices in the city of New York and a branch office in the city of Chicago. D. S. Horwitz was traveling agent for the plaintiff.

Kiorison Shane presented a claim against the estate of John Shearsmith, deceased, for services rendered. The claim was allowed by the commissioners, and defendant appealed to the circuit court. • From a judgment there for claimant, defendant brings error.

Assumpsit by Frank E. Brown and John Sehler, co-partners as Brown & Sehler, against Frank F. Foster, Cornelius Burke, and William H. Coon, copartners as the Harbor Springs Implement Company, to recover the value of chattels converted. From a judgment for defendants, plaintiffs bring error.

<p>1. Trespass — Cutting Trees — Highway—Title.</p> <p>Where plaintiff brought an action for trespass in cutting trees located in the highway, he could recover only by proving, title to the land on which the trees stood.</p> <p>2. Same — Pleading—General Issue.</p> <p>A plea of the general issue in justice’s court, without the notice and bond prescribed by 1 Comp. Laws, §§ 782-786, to a declaration in trespass averring that defendant cut and carried away trees owned by and standing “on the land of” plaintiff, does not admit title in plaintiff. Grant, J., and Moore, C. J., dissenting.</p>

<p>Mandamus by William C. Beebe to compel Edwin A. Wildey, commissioner of the State land office, to issue a certificate showing a homestead entry.</p>

Mandamus by Joseph Grinky to compel Edgar O. Durfee, probate judge of Wayne county, to proceed to a hearing on a petition for the admission of an alleged insane person to an asylum. From an order denying the writ, relator brings certiorari.

Case by James Hunter against the village of Durand for personal injuries. There was judgment for plaintiff, and defendant brings error.

- Ejectment by Frank Hoffman against George Silver-thorn and Perry F. Powers, auditor general. There was ' judgment for plaintiff, and defendants bring error.

; Smith, J. Trespass quare clausum fregit by Selden Newberry against William Bunda. There was judgment for defendant, and plaintiff brings error.

Mandamus by the board of supervisors of Saginaw county to compel John G. Hubinger, as supervisor of Frankenmuth township, to spread certain county road taxes upon the rolls of said township. From an order denying the writ, relator brings certiorari.

Case by Phila Harrison, administratrix of the estate of Herbert J. Harrison, deceased, against the Detroit, Ypsilanti, Ann Arbor & Jackson Railway for the alleged negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

<p>Error to Berrien; Coolidge, J.</p> <p>Jacob Nagle was convicted of larceny and sentenced to imprisonment for five years in the State prison at Jackson.</p>

Case by Martha J. Thompson against the city of West Bay City for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by the Nipigon Transit Company against W. R. Smytbe for an alleged breach of contract to transport certain wood. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.</p>

Mandamus by the .Detroit Real Estate Investment Company, Limited, and others, to compel Robert E. Erazer, circuit judge of Wayne county, to hear an application for the vacation of a street.

Assumpsit by George McKenzie against the Michigan Central Railroad Company for an alleged breach of a contract to transport certain live stock. There was judgment for plaintiff, and defendant brings error. J uly 2,1902, plaintiff shipped a car load of cattle, sheep, calves, and hogs from Chesaning and Owosso. The destination was Detroit. The car left Owosso at 3 p. m., arriving at Jackson at 8:30 p. m., over the Saginaw division of defendant’s road.

<p>Appeal from Van Buren; Carr, J.</p> <p>Bill by Mathias Oik against Ervin B. Shugars and Frances E. Shugars to set aside a deed. From a decree for complainant, defendants appeal.</p>

Case by Henry Thurkettle against Shepherd P. Erost for malicious prosecution. There was 'judgment for plaintiff, and defendant brings error.

Bill by Anna L. Dunning against Joseph M. Gaige to redeem from the foreclosure of a certain mortgage. From a decree dismissing the bill, complainant appeals.

Mandamus by George Hopper to compel Eugene A. Stowe, probate judge of Livingston county, to vacate an order denying a petition for an accounting. From an order granting tbe writ, respondent brings certiorari.

<p>Error to Missaukee; Chittenden, J.</p> <p>John H. Farrell was convicted of manslaughter and sentenced to imprisonment in the State prison at Jackson.</p>

<p>Exceptions before judgment from Van Buren; Carr, J.</p> <p>J. L. Congdon was convicted of violating the local option law.</p>

<p>Mandamus by Arthur A. Grimm to compel Fred M. Warner, secretary of State, to receive and file certain articles of association under chapter 191 of the Compiled Laws of 1897.</p>

Mandamus by R. Andrew Fleming, administrator de bonis non of the estate of Thomas W. Ferry, deceased, to compel Edward P. Kirby, probate judge of Ottawa county, -to approve a bond on an appeal from an order removing relator as administrator. From an order granting the writ, respondent brings certiorari.

Case by Ernest W. Turner against the Detroit Southern Railroad Company for personal injuries. There was judgment.for plaintiff, and defendant brings error.

Bill by Nelson Yan Derlyn, individually and as executor of the last will and testament of John Van Derlyn, deceased, and Alfred Van Derlyn against Lillie May Mack, an infant, by John F. Mack, guardian ad litem, to construe said will and codicil thereto, and to determine the legatees thereunder. From an order overruling a demurrer to the bill, defendant appeals.

<p>1. Court Rules — Construction.</p> <p>By the re-enactment of a rule of court the construction which has been placed upon the same language by the court is also adopted.</p> <p>2. Same — Discovery or Books and Papers.</p> <p>Circuit Court Rule No. 50, providing that a party may be com-polled to produce and discover all such books, papers, and documents as may be necessary to enable the party applying for such discovery to prepare for the trial of the cause, does not authorize the court to compel the production of a party’s books until the moving party shows his inability to compel production by a subpoena duces tecum.</p>

Submitted October 8, 1903. Case by John Thick against Doctor M. Washer and David V. Yerex for malicious prosecution. There was judgment for plaintiff, and defendants bring error.

Submitted November 4, 1903. Bill by Harriet A. Peirson, executrix of the last will and ■ testament of Levi R. Peirson, deceased, against Myrtie M. McNeal, Corvis M. Barre, Chauncey F. Cook, and others, to set aside a deed and the assignment of certain mortgages. From a decree dismissing the bill, complainant appeals.

Cross-appeals from Lenawee; Chester, J. Bill by Electa W. Peirson against Clemenza E. Peirson, Ellen Britton and Edwin F. Wells to restrain the foreclosure of a mortgage. From a decree for defendants, complainant and defendant Peirson appeal.

Case by Samuel Hillman against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.

Decided July 16, 1904. Assumpsit by the A. M. Todd Company, Limited, against the Farmers’ Mutual Fire-Insurance Company of Allegan and Ottawa Counties on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by the village of Chelsea against Harmon S. Holmes, Edward Vogel, Ernest R. Dancer, and Dallas H. Wurster, copartners as the H. S. Holmes Mercantile Company, for the taxes of 1901. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

<p>1. Waters — Obstructions—Laches.</p> <p>Where obstructions to the natural flow of water in a stream have been permitted to remain over 15 years, a riparian owner’s remedy for their removal is barred by the statute of limitations and by laches.</p> <p>2. Equity — Injunction—Estoppel.</p> <p>One who makes a mere protest, and waits until an expensive improvement is completed, cannot invoke the aid of a court of equity to undo the expensive work.</p> <p>'3. Same — Relief Impracticable.</p> <p>Equity will not grant relief which, under the evidence, is wholly impracticable.</p> <p>4. Water — Riparian Owners — Nuisance.</p> <p>A city cannot divert water from one side of the river, to the injury of a riparian owner, into a channel on the opposite . side, for the purpose of abating a nuisance in such channel, where there is another practicable way which will not damage landowners.</p> <p>5. Nuisance — Public Health — Private Injury.</p> <p>A private person can only maintain a bill to abate a nuisance to the public health when the nuisance causes special damage to him as a private person, separate from that done to the public.</p>

John E. Muste was convicted of murder in the second ■degree and sentenced to life imprisonment in the State prison at Jackson.

Trover by Leo Loeser, Ferdinand Loeser, and Solomon Loeser, copartners as Loeser Brothers, against Walmar Jorgenson and George F. Owen. There was judgment' for defendants, and plaintiffs bring error.

Bill by the township of Oneida against Charles G. Allen to restrain the use of an approach to a cemetery as a farm lane. From a decree for complainant, defendant appeals.

Bill by George J. Malone, by Cora Malone Smith, guardian, against Erskine Danforth, Flora A. Danforth, and Herbert M. Danforth to have certain conveyances declared mortgages. From the decree rendered, all parties appeal.

Case by Douglas A. Thurston against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit in justice’s court by Frank E. Brown and John Sehler, copartners as Brown & Sehler, against William Knop and Lewis Martin on promissory notes. There, was judgment for plaintiffs, and defendants brought certiorari in the circuit court. There was judgment for defendants at the circuit, and plaintiffs bring error. This case was commenced in a, justice’s court for the county of Charlevoix, at the request of one Merriman, agent for plaintiffs.

O. Arthur Rodgers presented a claim against the estate of Caroline R. Lamb, deceased, for services rendered. The claim was allowed in part by the commissioners, and defendant appealed to the circuit court. There was judgment for defendant on a verdict directed by the court, and claimant brings error.

Assumpsit by the board of water commissioners of the city of Detroit against the board of education of the city of Detroit for water furnished. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by John W. Leggett against the city of Detroit to set aside a deed. From a decree for complainant, defendant appeals; and from an order allowing Albert U. Widman to file a bill in the nature of a bill of review, complainant appeals.

Assumpsit by Horace A. Hudson against the Columbian Transfer Company for the value of goods destroyed by fire while stored in defendant’s warehouse. There was judgment for plaintiff, and defendant brings error. Affirmed.

Case by George H. Sipes against the Michigan Starch Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>Error to Wayne; Frazer J.</p> <p>Assumpsit by Charles A. Buhrer, treasurer of Wayne county, for the use and benefit of said county, against Stephen Baldwin, Jesse H. Farwell, and Merrill B. Mills on a contract of guaranty. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.</p>

Case by Thomas Harden against the city of Jackson for personal injuries. There was judgment for plaintiff, and •defendant brings error.

Assumpsit by the city of St. Joseph against Leona F. Vail for taxes. There was judgment for plaintiff, and defendant brings error.

Bill by William P. Mowry against Charles A. Mowry, Hannah Mowry, and others to compel the foreclosure of a-mortgage. From a decree for complainant, defendants Mowry appeal.

Case by Frank Bernard, Jr., an infant, by his next friend, against the Pittsburg Coal Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Wenceslaus K. Kwiecinski presented a claim against the estate of Teresa Newman, deceased, for medical services. The claim was disallowed by the commissioners, and claimant appealed to the circuit court where there was judgment for claimant, and defendant brings error.

Assumpsit by Emanuel Schloss against Albert W. Schloss and Murray Schloss, copartners as Schloss Brothers, for rent. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

Assumpsit by John A. Wheeler and Joseph A. Pitkin, copartners as Wheeler & Pitkin, against the board of control of the State public school upon a contract for installing a steam heating plant. Defendant had judgment on •a plea in abatement, and plaintiffs bring error.

Bill by Albert S. Harris and others against Edwin C. Roraback and another to restrain the erection of a dwelling. From a decree for complainants, defendants appeal.

<p>Cross-appeals from Kalamazoo; Adams, J.</p> <p>Bill by Eola L. Burke against John H. Burke for a divorce. From the decree rendered j both parties appeal.</p>

Asa Farnsworth presented a claim against the estate of Lucy M. F. Seely, deceased, for the amount of a promissory note, which was allowed by the commissioners. The administrator, William A. Fraser, appealed to the circuit court, where there was judgment for the claimant, and the administrator brings error.

<p>Exceptions before judgment from Leelanaw; Mayne, J.</p> <p>Joseph Possing was convicted of violating .the liquor law.</p>

Case by Mary A. Lockwood, administratrix of the estate of Charles W. Lockwood, deceased, against James H. Tennant for the negligent killing of plaintiff’s intestate. There was judgment for defendant, and plaintiff brings error.

Bill by Thomas C. Wolcott against the Connecticut General Life-Insurance Company, Edwin W. Abbott, and' others, to set aside certain conveyances, and for an accounting. From a decree for complainant, defendants-insurance company and Abbott appeal.

Case by Annie Beattie against the city of Detroit for personal injuries. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Peter W. Decker and Ered R. Jean, co-partners as Decker & Jean, against John Widdicomb for commissions on the sale of certain real estate. There was judgment for plaintiffs, and defendant brings error.

Bill by Charles A. Newland and others against the First Baptist Church Society of Bellevue and another to reform and set aside certain deeds. From a decree for complainants, defendant church society appeals.

Bill by Edgar Cranson against Gardner W. Snyder to.restrain the obstruction of certain tile drains. From a decree for complainant for* less than the relief prayed for, he. appeals. Complainant and defendant are farmers owning adjoining lands. Complainant owns the upper or dominant estate; defendant, the lower or servient estate. Complainant had three tile drains extending from his land into that of the defendant.

Assumpsit by John Dubay against George H. Kelly for breach of covenant of seisin in a deed. There was judgment for plaintiff, and defendant brings error.

Bill by Lucy Bell Albring against Edward Ward and Martha Ward to establish a right to share in the distribution of the estate of Henry Ward, deceased. From a decree for complainant, defendants appeal. The complainant is the daughter of John Bennett and' Ann Bennett. Her mother died soon after her birth. Mr. and Mrs. Bennett had two other small children. The three were taken care of by Mr. Bennett’s mother.

Case made from Chippewa; Steere, J. Case by Charles Gardner against John A.- Couch for false imprisonment. There was judgment for defendant,, and plaintiff assigns error.

Assumpsit by the National Life & Trust Company against Martha J. Omans on a promissory note. There was judgment for plaintiff, and defendant brings error.

Bill by Samuel Pollock and Lyman H. McCall against Rosslyn L. Sowers, drain commissioner of Eaton county, to restrain the completion of a drain. From a decree dismissing the bill, complainants appeal.

Bill by William S. Rathbone and Alfred Graham against Albert A. Groh, Lillian C. Groh, Chase Aldona, and Tilly Aldona, impleaded with Sophia M. B. Slocum and John H. Smedley, to enforce the specific performance of a land contract. From a decree for complainants, defendants Groh and Aldona appeal.

Bill by Martha F. Stewart against the city of Detroit, William B. Thompson, city treasurer, and Thomas M. Lucking, receiver of taxes, to restrain the collection of a paving tax. From a decree for complainant, defendants appeal.

Bill by Rudolph Sondheim against Emma Fechenbach and others to construe the will of Solomon Sondheim, deceased. From a decree for complainant, defendants appeal.

Bill by Margaret J. Butcher against John Butcher for partition and for an accounting. Defendant filed an answer in the nature of a cross-bill to quiet title. From a decree-for defendant, complainant appeals.

Clair; Tappan, J. Case by Daniel McDonald against the City Electric Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Replevin by Agnes Knight against Willard Brown. There was judgment for plaintiff, and defendant brings ■error. This is an action of replevin for a horse. The declaration is in the usual form; plea, the general issue. Plaintiff is a widow, living upon and carrying on her farm.

<p>Exceptions before judgment from St. Glair; Tappan, J.</p> <p>Otto Klammer was convicted of larceny from a burning building.</p>

<p>1. Statutes — Amendment—Titles—Local Acts.</p> <p>A general statute of local application cannot be extended in its operation to tbe whole State by an act having a title merely indicating a purpose to amend the local statute.</p> <p>2. Same — Repealing Clause — Invalidity.</p> <p>Where an act attempting to extend a law of local application to the whole State is ineffectual because of a defect in its title, the provisions therein repealing the existing general statute on the same subject are likewise ineffectual, and the general statute stands unrepealed.</p> <p>3. Hawkers and Peddlers — Statutes—Invalidity—Repeal.</p> <p>Act No. 137 of the Public Acts of 1895, attempting to extend to the whole State Act No. 204 of the Public Acts of 1889, regulating hawkers and peddlers in the Upper Peninsula, is invalid for failure of its title to express its purpose, and the attempted repeal therein of the general statute on the same subject (1 How. Stat. §§ 1256-1266,2 Comp. Laws, chap. 136), is ineffectual.</p> <p>4. Statutes — Amendment—Constitutional Law.</p> <p>Though as a general rule an unconstitutional law cannot be made valid by amendment, such a law may be re-enacted after the unconstitutional features have been eliminated, and the fact that the Constitution requires that laws amended be re-enacted and published at length presents no obstacle to that course.</p> <p>o. Hawkers and Peddlers — Class Legislation.</p> <p>Chapter 136, 2 Comp. Laws, prohibiting peddling without license, but making an exception in section 22 in favor of wholesale merchants selling by sample, and manufacturers, farmers, mechanics, and nurserymen selling their own product, is not class legislation.</p>

<p>Exceptions before judgment from Ottawa; Padgham, J.</p> <p>John W. Horling, Bert Horling, and John Horling were convicted of illegal fishing.</p>

<p>1. Municipal Corporations — Defective Sidewalks — Injuries— Contributory Negligence.</p> <p>It is not negligence per se for one knowing of defects in a sidewalk to attempt to pass over it.</p> <p>3. Same — Evidence—Sufficiency.</p> <p>In an action for injuries to a pedestrian by a defect in a city sidewalk, evidence reviewed, and held insufficient to show plaintiff’s contributory negligence as a matter of law.</p> <p>3. Same — Contributory Negligence.</p> <p>Where a pedestrian was injured by the tipping up of a plank which was a part of a defective sidewalk, the fact that she might have seen and avoided holes in the walk was insufficient to render her chargeable with negligence in failing to discover that the plank on which she stepped'would tip up and. cause her injury.</p> <p>4. Same — Notice of Claim — Sufficiency.</p> <p>Notice to municipal officers of a claim for personal injuries is. sufficient if it describes the time, place, cause, and nature of the injury in general terms.</p> <p>5. Same — Statute—Construction.</p> <p>The statute requiring that notice of a claim for personal injuries be served on a municipal corporation before suit, being in derogation of a common right, is strictly construed.</p>

, presiding. Bill by Ervin P. Cole and others against Patrick Dooley, drain commissioner of Barry county, to restrain the construction of a proposed drain. From a decree for complainants, defendant appeals.

Clair; Law, J. Bill by Roys J. Cram against Charles A. Ward and others to restrain the removal of sand from a beach in which complainant and other of defendants’grantees have an undivided interest. From a decree for complainants granting insufficient relief, complainant appeals. Defendant Ward, being the owner of certain lands in the township of Ft.

Case by Joseph Landowski against Alexander Chapoton for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Mandamus by Christian F. Kapp to compel the board of auditors of Washtenaw county to allow a bill for services in cases of contagious diseases. From an order denying the writ, relator brings certiorari.

Debt by Michael P. Hughes against Patrick J. M. Hally and Samuel Kennedy for the amount of a bond. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

Exceptions blefore judgment from Lenawee; Chester, J. Le Roy Kuney was convicted of aiding and assisting a» girl to leave the State, knowing her to be a subject of the industrial home for girls, without the consent of the board of control of said home.

Bill by Willard C. Lyon, trustee in bankruptcy of the estate of Fred E. Hazle and Frank B. Clark, against Nathaniel J. Clark to set aside certain conveyances as fraudulent. From a decree for complainant, defendant appeals.

<p>Error to Monroe; Lockwood, J.</p> <p>Assumpsit by Jacob Naftzker against Henry Lantz,. Gordon Lantz, and Myron Lantz, copartners as Lantz & Co., on a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendants: bring error.</p>

Mandamus by Samuel Willsie to compel the common council of the city of Ionia to pay relator’s salary as engineer. From an order denying the writ, relator brings certiorari.

Habeas corpus proceedings by William J. Lambrecht to Petitioner was convicted October 26,1903, of an attempt to utter a forged instrument on July 10, 1903, and sentenced to the State prison for not less than 2$ and not more than 3 years, under Act No. 136 of the Public Acts of 1903, known as the “ Indeterminate Sentence Law.” The act took effect September 16, 1903.

<p>Criminal Law — Breaking and Entering — Indeterminate Sentence.</p> <p>Under the indeterminate sentence law of 1903 (Act No. 136), the court has power to fix the minimum term of imprisonment for statutory burglary, as defined by section 11547, 3 Comp. Laws, no minimum being provided by the statute.</p>

<p>1. Highways and Streets — Raising Grade oe Crossing Railroad — Injunction—Peculiar Damages.</p> <p>One whose frontage on a street would be lessened by the raising of the grade of a railroad crossing the street in the block in which his lots are located, and whose passage out of the block in the direction of the railroad would thereby be out off, increasing the cost of trucking to and from his ware- ■ bouses on the lots, and depreciating the value of his property, suffers a special damage different from that of the public, authorizing him to maintain a suit for injunction.</p> <p>2. Same — Abutting Owners — Compensation.</p> <p>Power in the charter of Ann Arbor to designate grades of railroads coming into the city, and to establish a grade for streets and sidewalks, does not authorize the city to in effect vacate part of a street by allowing a railroad to cross it on an embankment above the grade of the street, thereby cutting-off an abutting owner’s access to his property, without providing him compensation.</p>

Debt by Alberta E. Yan Camp against the Michigan Central Railroad Company for failure to transport, under 2 Comp. Laws, § 6235. There was judgment for plaintiff on a verdict directed by the court,, and defendant brings error. This suit was brought to recover the penalty of $100 provided by section 6235, 2 Comp. Laws, for the failure of the defendant to transport the plaintiff, in accordance with her contract of carriage, without legal or just excuse.

Assumpsit by the Newaygo Portland Cement Company against the township of Sheridan for taxes paid under protest. There was judgment for plaintiff, and defendant brings error.

Headsten, deceased, for the amount of a promissory note. The claim was allowed in the probate court, and Anna R. Headsten, the administratrix, appealed to the circuit court. There was judgment for claimant at the circuit, and defendant brings error.

Case by Nettie Herring against the city of St. Joseph for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by William E. McLean, an infant, by his next friend, against the Pere Marquette Railroad Company for personal injuries. There was judgment for plaintiff, ■and defendant brings error. On September 5, 1902, plaintiff, a section hand in the ■employ of the defendant, was injured by the derailment of a hand car upon which he and the other members of the section crew were riding. The section men had been working on the track about two miles east of Chase.

Case by Elfa H. King, administratrix of the estate of Sheridan J. King, deceased, against the Ann Arbor Railroad Company for the alleged negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Case by John Quirk, by nest friend, against the Rapid Railway, for personal injuries. There was judgment for plaintiff, and defendant brings error.

Petition by Ferdinand Bending against Perry F. Powers, auditor general, Charles H. Chick, and the Diamond Match Company to set aside the decree and sales of certain lands delinquent for the taxes of 1892, 1893, and 1894. From a decree dismissing the petition, petitioner appeals.

Bill by Robert Pluchak against Samuel Crawford and others to restrain the flooding of complainant’s land. Prom a decree for complainant, defendants appeal.

Assumpsit by Yincent W. Procbaska against Harry J. Fox for money had and received. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. B. & L. owned some vacant lots in the city of Detroit. They leased them to P. for a display of fireworks. P. appears to have subleased to defendant, who leased to plaintiff the bar privileges for a period of two weeks, July 14th to July 36th.

Bill by Catherine Hoste and others against Honorah Dalton and others to compel specific performance of an agreement to arbitrate. From a decree for complainants, defendants appeal.

<p>1. Criminal Law — Second Jeopardy.</p> <p>Where, on a juror becoming, ill after the prosecutor’s opening statement, but before the introduction of any testimony, the court, over respondent’s objection, discharges the remainder of the jury from further consideration of the case, on the ground that respondent is out on bail and other more urgent matters require the attention of the court, he is not so put in jeopardy as to preclude a subsequent trial</p> <p>3. Same — Trial—Curing Error.</p> <p>Refusal, in a prosecution for larceny, to permit respondent to show restitution by cross-examination of the complaining witness, is not prejudicial where the whole matter was developed at a later stage of the trial.</p> <p>3. Same — Evidence—Comparison oe Handwriting.</p> <p>Where, in a prosecution for larceny of money, alleged to have been obtained through the forgery of a draft by respondent, he claimed that he was paid the money secured by the draft, by a third person, to be used to purchase wood in the country, and introduced a receipt for wood so purchased in his own handwriting, the draft being properly in evidence, it was not error for the court to permit respondent’s signature on the receipt and the indorsement on the draft to be compared.</p> <p>•4. Same — Admissions oe Co-Respondents.</p> <p>Where respondent and another were informed against for the larceny of money obtained through a forged draft, and respondent-was separately tried before his co-respondent, and was not, charged with conspiracy, evidence given by his co-respondent in the police court, by which he attempted to fix the crime, on respondent, was inadmissible.</p> <p>5. Same — Argument of Counsel.</p> <p>Where, in a prosecution for the larceny of money, alleged to-have been obtained through a forged draft, the draft and a receipt signed by defendant were introduced in evidence, it-was not error for the prosecuting attorney, in argument to-the jury, to call their attention to identical peculiarities in the handwriting on the receipt and in the indorsement on the-draft.</p> <p>6. Same.</p> <p>Where, in a criminal prosecution, there is nothing in the record-justifying a claim that prior to the offense in question respondent has done anything requiring him to have a pal, it is improper for the prosecuting attorney, in argument, in-commenting on character witnesses introduced, to state that-none of the character witnesses knew anything about what respondent was doing while living in D., or his reputation, and the only man called from D., where respondent resided two years, was one of respondent’s pals.</p> <p>7. Same — Requests to Charge.</p> <p>Matters sufficiently covered by the general charge need not be repeated.</p>

Assumpsit by Levi L. Barbour and Dwight C. Rexford against Charles A. Hurlburt for money had and received. There was judgment for plaintiffs on a verdict directed by the court, and defendant brings error.

Case by Ardon B. Comstock against the -township of Georgetown for personal injuries. There was j’udgment' for plaintiff, and defendant brings error.

Assumpsit by James Murphy against Gerrit Dobben, treasurer of Garfield township, for taxes paid under protest. There was judgment for defendant, and plaintiff brings error.

<p>1. Pleading — Affirmative Defense — Notice.</p> <p>Cir. Cfc. Rule 7, subd. b, requiring notice of affirmative defense relied upon to defeat or avoid the legal effect of the cause of action set forth by plaintiff, has no application to actions of trover and replevin where the declaration does not allege plaintiff’s source of title.</p> <p>3. Witnesses — Cross-Examination—Tax Statement — Privilege.</p> <p>Under 1 Comp. Laws, § 3846, a tax statement made by a taxpayer may not be used on his cross-examination as a witness on the issue of the value of the property in question.</p> <p>3. Exemptions — Fraudulent Yendee — Selection—Waiver.</p> <p>Whether a fraudulent vendee is entitled to claim the exemption which his fraudulent vendor is entitled to under 3 Comp. Laws, § 10336, or not, no duty to make the selection is imposed by statute on an officer attaching the property on a claim against the vendor, and the vendee must notify the officer, and demand the right of selection, or be held to waive it.</p> <p>4. Fraudulent Conveyanoes — Sales of Goods — Change of Possession — Presumptions.</p> <p>Section 9530, 3 Comp. Laws, making every sale of goods unaccompanied by immediate delivery and followed by an actual and continued change of possession presumptively fraudulent and void as against the vendor’s creditors, applies to prior, as well as subsequent, creditors of the vendor.</p>

Case by George B. Sudworth against Hudson T. Morton and the Wolverine Land Company for fraud and deceit. There was judgment for plaintiff against defendant Morton, and Morton brings error.

Case by Hartsoñ G. Barnum, administrator of the estate of George F. Nixon, deceased, against the Grand Trunk Western Railway Company for the alleged negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Bill by the Grand Rapids & Indiana Railway Company against the city of Grand Rapids and Marcus A. Frost, city treasurer, to enjoin the sale of certain land for the taxes of 1901. From a decree for complainant for a portion of said land, it appeals.

<p>1. Statute of Frauds — Transfer of Note.</p> <p>An oral promise by the indorser of a note held by a bank that he would deposit its value to the credit of the bank with its New York correspondent if the bank would send the note to him, is void under the statute of frauds, in the absence of proof of an actual delivery of the note in pursuance thereof.</p> <p>2. Bills and Notes — Fraud—Banks.</p> <p>The director of a bank conspired with the cashier to deliver,to the director a note on which he was indorser, and to carry a fictitious credit entry on the bank’s books for its value until after the note had become uncollectible, and then fraudulently connived with the cashier to return the note to the bank without the knowledge or authority of its officers, by reason of which the bank was prevented from collecting the note during the time it was withdrawn when it was collectible. Held, that recovery against the director of the full amount of the note could not be had by reason of the fraud without proof that at the time the alleged agreement was made the note was collectible, and that when it again appeared in the files of the bank it was worthless.</p>

Cross-appeals from Wayne; Hosmer, J. Bill by Edgar S. Dean against George W. Radford and Laura E. Radford to have a deed declared a mortgage and to restrain the foreclosure of a chattel mortgage. Erom the decree rendered, all parties appeal.

Bill of review by Clark S. Phelps and another against William O’Connor and Perry P. Powers, auditor general. From a decree dismissing the bill without costs, defendants appeal.

Clair; Law, J. Assumpsit by the Supreme Tent Knights of the Maccabees of the World against the Port Huron Savings Bank for money had and received. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

•Appeal from Wayne; Mandell, J. Bill by Mary E. Barnard against John Paterson, Hattie W. Paterson, and the Wayne County Savings Bank to foreclose certain mortgages. From a decree for complainant for less than the amount prayed for, she appeals.

Mandamus by the city of Monroe to compel the board of supervisors of Monroe county to fix a time and place for the hearing of evidence respecting a certain claim. There was an order granting the writ, and respondent brings certiorari.

■ Charles H. Oliver presented a claim against the estate of Charles E. Jessup, deceased, for services rendered. The claim was allowed by the commissioners, and the estate appealed to the circuit court. There was judgment at the circuit for claimant, and defendant brings error.

<p>Adverse Possession — Character of Holding — Minors—Notice.</p> <p>Where a father deeded land to his daughter as a gift, but remained in possession and paid the taxes several years out of funds in his hands belonging to her, but after her death, leaving infant children, allowed the land to be sold for taxes and purchased it at the sale, limitations would not run against the title of the minor children until actual notice to-them of the adverse character of his possession.</p>

Bill by Charles Thorne and others against John S. Foley and others to enforce a trust. From a decree sustaining a demurrer to the bill, complainants appeal.

Case by James Lovely against the Grand Rapids & Indiana Railway Company for the negligent killing of a steer. There was judgment for plaintiff, and defendant brings error.

Trespass quare clausum fregit by George Hinchman against J. Harvey Spaulding. Plaintiff had judgment in justice’s court, and defendant brought certiorari to the circuit court. The circuit court set aside the judgment of the j ustice, and plaintiff brings error.

Cross-appeals from Kent; Wolcott, J. Bill by William H. Gay, individually, and as administrator of tbe estate of George W. Gay, deceased, and Gertrude A. Carman against Julius Berkey for an accounting. From the decree rendered, all parties appeal.

Case by George E. Caldwell against the city o£ Detroit for personal injuries. From a judgment for plaintiff, defendant brings error.

, presiding. Trover by Ira N. Bryant against Amos Wilcox. There was judgment for plaintiff for less than the amount claimed, and both parties bring error.

Petition by the People of the State of Michigan, on the relation of Sedgwick Dean and Henry S. Dean, against the Ann Arbor Railroad Company and others, to punish respondents for contempt in violating an injunction. From an order denying the relief, petitioners appeal.

<p>Appeal from Wayne; Eohnert, J.</p> <p>Judgment creditor’s bill by Ira Wilson against Adam Henry. From a decree dismissing the bill, complainant appeals.</p>

<p>Exceptions before j udgment f rom superior court of Grand Rapids; Newnham, J.</p> <p>Gerrit H. Albers was convicted of perjury.</p>

<p>Exceptions before judgment from superior court of Grand Rapids; Newnham, J.</p> <p>James Mol was convicted of accepting a bribe.</p>

' Assumpsit by Joseph A. Thick against the Detroit, Utica & Romeo Railway for breach of a contract to purchase certain ties. There was judgment for plaintiff, and ■defendant brings error.

Case by Martin Meyer against Annie M. Knott for alleged fraud. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Quo warranto proceedings by Christian Ott against Peter Brissette to try the title to the office of supervisor of Kawkawlin township. There was judgment of ouster, and respondent brings error. This is an action of quo warranto to test the title to the office of supervisor for the township of Kawkawlin. The facts are stipulated.

Mandamus by Ira C. Jennings to compel the board of election commissioners of Delta county to place relator’s name upon the official ballot as the republican candidate for judge of probate. The relator and Thomas B. White were candidates for the office of judge of probate atu, recent convention of the republican party for the county of Delta, held at Escanaba, in said county. There were 46 delegates present.