Volume 138 — Michigan Reports

Case by Julius Hampel, administrator of the estate of Amelia Drager, deceased, against the Detroit, Grand Rapids & Western Railroad Company, for the alleged negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Clair; Tappan, J. Trover by John M. Hoffman against the H. M. Loud & Sons Lumber Company and others. There was judgment for plaintiff, and defendants bring error.

Case by the Musselman Grocer Company against Spurgeon D. Casler for obtaining goods by false representations. Suit was begun by capias. There was judgment for defendant, and plaintiff brings error.

<p>Intoxicating Liquors—Minors—Hospitality.</p> <p>Section 5391, 2 Comp. Laws, prohibiting furnishing liquors to minors, has reference only to acts by persons engaged in the business of liquor selling, and not to mere acts of hospitality in their homes by persons not so engaged.</p>

<p>Bribery—Officer—Matter Officially Cognizable.</p> <p>Where a proposition to let a contract for waterworks was one which might come before a city council for official action, the fact that the council had no authority to make the contract did not prevent the receipt of money by a councilman to influence his action on the same from constituting a violation of 3 Comp. Laws, § 11312.</p>

Habeas corpus proceedings by Frank W. Palmer to obtain his release from custody under an extradition from the governor of Ohio. There was an order dismissing the writ, and petitioner brings certiorari.

<p>Habeas corpus proceedings by John Cummins to secure his release from the State prison at Jackson.</p>

Mandamus by Willis Clapp to compel Lincoln H. Titus, president of the village of Paw Paw, to sign orders for certain sums voted to relator by the common council. There was an order denying the writ, and relator brings certiorari.

Mandamus by Glover J. Ashley and others to compel Joel 0. Hopkins, circuit judge of Calhoun county, to vacate an order requiring relators to produce certain books and papers.

Trover by Anna E. Gerrish against the Muskegon Savings Bank. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by Wesley J. Thomas against the South Haven & Eastern Railroad Company for breach of a contract to construct a side track. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Mary J. June against Sophie E. Labadie and Joseph A. Labadie on a promissory note. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Assumpsit by Charles Andreas against school district No. 4, fractional, of the township of Leavitt, for an alleged balance due on a building contract. There was judgment for plaintiff, and defendant brings error.

Case by Elisha Clement against the Pere Marquette Railroad Company for the alleged negligent killing of plaintiff’s horses. There was judgment for plaintiff, and defendant brings error.

Assumpsit by the people of the State of Michigan, for the use and benefit of the O. H. Little Company, against James Grant, principal, and John Archer and Julius Porath, sureties, upon a statutory bond. There was judgment for plaintiff for less than the amount claimed, and plaintiff brings error.

Case by Josephine Mulvey against James Stevenson for personal injuries. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Martha Linsell against Henry Linsell. There was judgment for plaintiff for less than the amount claimed, and plaintiff brings error.

Case by Mary Wilton against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>Deeds —Suit to Annul —Undue Ineluence — Delivery — Evidence—Appeal.</p> <p>Where, on a bill to annul certain deeds on the ground of undue influence, failure to understand them, and lack of delivery, complainant’s testimony is freer from bitterness than that of defendant’s brothers and sisters, and the circumstances shown lead to its credit, a decree for complainant will be affirmed, though defendant and two other witnesses testify to delivery of the deeds, and complainant fails to show ignorance of their purport.</p>

Bill by Mary Jane Ware against Charles W. Hall to set aside an execution levy. From a decree for complainant, defendant appeals. The object of this bill is to cancel an execution levy made upon a vacant lot in Benton Harbor, which complainant claims as a homestead. The sole question presented by the record is whether she had taken sufficient steps to establish and maintain this lot as a homestead.

Bill by Walter S. Stoddard and Jane Stoddard against the Saginaw Building & Loan Association for an accounting and the cancellation and discharge of certain mortgages. From a decree for complainants, defendant appeals.

Case made from Antrim; Wayne, J. Assumpsit by the Michigan Buggy Company against John Smallegan and John H. Smith, copartners as Smallegan & Smith, for goods sold and delivered. There was judgment for plaintiff, and defendants appeal.

Mandamus by Martha J. Thompson to compel Theodore F. Shepard, circuit judge of Bay county, to set aside an order striking a stipulation of discontinuance from the files. Petitioner brought suit in the circuit court of Bay county against the city of West Bay City for negligent personal injury, and had judgment, which was reversed on error in this court. Thompson v. City of West Bay City, 137 Mich. 94.

Bill by the Sands & Maxwell Lumber Company against James D. Gay and others to foreclose a land contract. From a decree dismissing the bill, complainant appeals.

Assumpsit by John Popp and Joseph E. Wolf, copartners as Popp & Wolf, against Christina Connery for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error. The defendant was erecting some houses on some lots owned by her. The contracts for their construction were made mainly by her husband in his own name. The business was mainly conducted by him, though she frequently gave instructions.

Summary proceedings by Otto Gr. Meeske against Frederick W. Miller before a circuit court commissioner for the possession of certain leased premises. Plaintiff had judgment of ouster before the commissioner, which was reversed by the circuit court on certiorari, and plaintiff brings error.

Assumpsit by William H. Cleveland against Sigmund Rothschild to recover the purchase price of certain corporate stock. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case by Lutheria A. Barnes against the city of West Bay City for personal injuries. There was judgment for plaintiff, and defendant brings error. This action was brought to recover damages for injuries sustained hy the plaintiff from a fall on a defective sidewalk in West Bay City.

Assumpsit in justice’s court by Sol. J. Hirsh and others, copartners as Hirsh, Wickware & Parks, against William Fisher, Isaac Fisher, and David Fisher, copartnei’S as Fisher Bros., for goods sold and delivered. A judgment for plaintiffs was reversed by the circuit court on certiorari, and plaintiffs bring error.

<p>Error to Cheboygan; Shepherd, J.</p> <p>Replevin by Philip W. Raber and Artemus D. Watson, copartners as Raber & Watson, against Robert N. Hyde. There was judgment for plaintiffs, and defendant brings error.</p>

Mandamus by Charles S. Erikson to compel Frank Emerick, circuit judge of Alpena county, to vacate an order denying a writ of audita querela: On motion to strike from the files parts of the return of respondent.

Mandamus by Emil A. Dapper to compel Connor H. Smith, county clerk of Kent county, to certify the names of candidates chosen by a mass convention to a place on the official ballot. There was an order denying the writ, and relator brings certiorari.

<p>Mandamus by John J. Ludwick to compel Willis B. Perkins, circuit judge of Kent county, to grant an application for a discharge from custody.</p>

Bill by Frank E. Morrill against Cora Morrill to restrain the removal of certain crops. Defendant filed an answer in the nature of a cross-bill, asking for the appointment of a receiver and for an accounting. From a decree for defendant, complainant appeals.

Case by Edward Frohlich, doing business as the Edward Frohlich Glass Company, against the Pennsylvania Company for damages to glass alleged to have been shipped in a defective car. From a judgment for plaintiff, defendant brings error. There is no substantial disagreement as to the facts of this case.

<p>Sheriffs—Return—Amendment.</p> <p>An .amendment to a sheriff’s return as to a matter of fact must be made by the sheriff voluntarily, and cannot be compelled by the court.</p>

Case by Howard Smith against Clinton Hockenberry for criminal conversation. There was judgment for defendant, and plaintiff brings error.

Bill by Maurice G. Skinner, administrator of the estate of Amelia W. Kelley, deceased, and others, against Louis W. Kelley to quiet title to land. From a decree dismissing the bill, complainants appeal.

<p>Fraudulent Conveyances—Payment of Debts—Husband and Wife.</p> <p>The conveyance by a debtor of his interest in a decedent’s estate, to pay an antecedent debt created by the dobtor and his wife, who already had a homestead, for the purpose of purchasing property, the title to which was not taken in the debtor alone, but was taken in the name of himself and wife as tenants by the entirety, was fraudulent as against other creditors of the debtor.</p>

Bill by Oliver Sproal against Augusta Larsen and others to be subrogated to the rights of a mortgagee and to foreclose the mortgage.- From a decree for complainant, defendants appeal.

Bill by Lorenzo M. Rhodes, administrator of the estate of Truman Bouldry, deceased, against Silas Bouldry, George W. Carter, May Covey, Bert Bouldry, Royal Bouldry, and Demmon Bouldry to obtain a construction of the last will and testament of Deming Bouldry, deceased. From a decree for complainant, defendants Covey and Bouldry appeal. One Deming Bouldry died testate. By his will he devised to Silas W. Bouldry, his stepson, the land described in the bill of complaint.

Moses R. Nowland, administrator of the estate of George Rice, deceased, appealed from the order of the probate court allowing his final account. To review the judgment rendered, the administrator brings error. The appellant was appointed administrator of the estate of George Rice, deceased, in November, 1887. On May 13, 1889, he filed an account. This account was heard by the probate court, passed upon, and allowed, with a balance due the estate of $338.72.

<p>Error to Calhoun; Hopkins, J.</p> <p>Assumpsit by Louis Fowles against Conrad Rupert for breach of a contract to purchase certain hay. There was judgment for plaintiff, and defendant brings error.</p>

Assumpsit by Walter S.* Martin against the Milwaukee, Benton Harbor & Columbus Railway Company for work and labor done. There was judgment for plaintiff, and defendant brings error.

John Cook appealed from an order of the probate court allowing a bequest in the last will and testament of Ann Smith, deceased, in favor of the Universalist General Convention. There was judgment for contestant, and the claimant brings error. One Ann Smith died testate, leaving no children.

Case made from Kent; Perkins, J. Assumpsit in justice’s court by William M. Adams and George W. Hart, copartners as Adams & Hart, against George W. Osborne for goods sold and delivered. Plaintiffs recovered judgment in the justice’s court, and defendant appealed to the circuit court by writ of certiorari. From a judgment for plaintiffs, defendant appeals.

Mandamus by the American Foundry & Machinery Company to compel Frederick W. Mayne, circuit judge of Charlevoix county, to vacate an order granting a preliminary injunction. The relator seeks the writ of mandamus to compel the respondent to vacate an order granting a preliminary injunction. Upon filing the bill the injunction was ordered and issued. Relator filed an affidavit, and moved for a dissolution of the injunction, which respondent refused.

Proceedings by the Wm. Barie Dry-Goods Company against Spurgeon D. Casler under the fraudulent debtors’ act. There was judgment for defendant, and plaintiff brings certiorari.

<p>Appeal from Berrien; Coolidge, J.</p> <p>Bill by Samuel Woolcott against Elmer L. Woolcott and Elizabeth A. Woolcott to set aside certain deeds. On settlement of the decree, defendants appeal.</p>

Bill by Stella May Bowins against Margaret English, individually and as administratrix of the estate of John G. English, deceased, and others, for the specific performance, of a contract of adoption. Prom a decree dismissing the bill, complainant appeals.

Mandamus by John D. Hiker, mayor, William J. O’Riley, clerk, and the common council of the city of Pontiac, to compel George W. Smith, circuit judge of Oakland county, to vacate an order refusing to dissolve an injunction. On July 13, 1904, the common council of the city of Pontiac advertised for bids for lighting the city in accordance with plans and specifications which the council had duly adopted. Bids thereupon were to be received until 7 o’clock p. m. July 25th.

Mandamus by William B. Hatch, administrator of the estate of Charles L. Andress, deceased, to compel Robert E. Frazer, circuit judge of Wayne county, to proceed with the trial of a cause.

Bill by the Board of Trade of Grand Haven against John 0. De Bruyn, Nicholas Bosch, and John Boda, doing business as the Valley City Machine Works, for the cancellation of a contract. Prom a decree for complainants, defendants appeal.

Garnishment proceedings by Adolph G. Heller and Daniel E. Patzer against the People’s Savings Bank as garnishee of Mary Smith, defendant. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Case by Charles Airikainen against the Houghton County Street-Railway Company for the negligent killing of a cow. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Eliza McCrady against Stephen N. Pratt for services rendered. There was judgment for plaintiff, and defendant brings error.

Case by Charles Butler against the Detroit, Ypsilanti & Ann Arbor Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by Melvin B. Church against the Anti-Kalsomine Company to compel the reassignment of a contract. From an order overruling a demurrer to the bill, defendant appeals.

<p>Adverse Possession.</p> <p>The use of a strip of railroad right of way for a railroad scale by an abutting mill owner is not adverse and hostile to the railroad company, though exclusive, where the railroad company builds and maintains a switch over the scale, has exclusive possession of the key to the switch, and receives and delivers cars over the switch for the mutual benefit of the parties.</p>

Case by Frank J. Knickerbocker against Aaron Worthing for the alienation of his wife’s affections. There was judgment for plaintiff, and defendant brings error.

Case by Charles O. Olivier, administrator of the estate of Cyrille Boivin, deceased, against the Houghton County Street-Railway Company, for negligent injuries to plaintiff’s intestate, resulting in his death. There was judgment for plaintiff, and defendant brings error.

<p>Preliminary Injunction—Dissolution—Discretion.</p> <p>The coming in of a sworn answer fully meeting the allegations of the hill does not deprive the court of all discretion to refuse dissolution of a preliminary injunction.</p>

Mandamus by the American Missionary Association and others to compel Charles L. Hall, probate judge of Huron county, to remove an administrator. To review an order denying the writ, relators bring certiorari.

Bill by Nicholas Cox against John F. A. Raider and Neils Jensen to compel the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.

Case by Mollie A Flanagan against Fred Sanders and others for personal injuries. There was judgment for defendants, and plaintiff brings error.

Bill by Lawrence Finn against Sidney Adams and George W. Shaw to vacate a judgment and sale in attachment. From a decree dismissing the bill, complainant appeals.

Case by Ethel McVean, by next friend, against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error. Defendant’s track runs over North Saginaw street, in the city of Pontiac. The street is 30 feet 2 inches wide, the distance between the west rail and the curb being 12 feet and 7 inches. The car projected 22¿ inches beyond the track. / Plaintiff, 15 years old, was riding with her sister in a buggy drawn by one horse.

<p>1. Deeds—Delivery—Presumption.</p> <p>Where a deed is delivered by the grantor to a third person, there is no presumption that such delivery is for the use of the grantee.</p> <p>2. Same—Sufficiency of Evidence.</p> <p>On a bill to cancel a deed delivered to a third person, evidence-considered, and held not to show a delivery for the use of the grantee.</p>

Mandamus by David D. Erwin, guardian ad litem and ■next friend of Edward P. Ferry, an incompetent, and ■others, to compel Philip Padgham, circuit judge of Ottawa county, to vacate an order dismissing certain appeals from the probate court.

<p>Mandamus by the Kilby Manufacturing Company to compel John W. Stone, circuit judge of Menominee county, to permit an amendment to an answer to a bill of complaint.</p>

<p>Appeal from Mecosta; Palmer, J.</p> <p>Bill by Fred W. Hughes against William Love for a partnership accounting. From a decree settling the account, defendant appeals.</p>

, presiding. Ejectment by Christian Rausch against Charles Briefer and Sarah Briefer. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error. This is an action of ejectment. After suit was commenced, defendant Charles Briefer filed a bill in equity to enjoin the prosecution of the suit at law. It is conceded that the legal title is in plaintiff. Defendant’s father died • in 1854, and his widow afterwards married the plaintiff.

Quo warranto by Charles A. Blair, attorney general, on the relation of Albert O. Reece, against John E. Shekell to try title to the office of city attorney for the city of Jackson.

George B. Miner was convicted of statutory rape and sentenced to imprisonment in the State prison at Jackson for a period of not less than, five nor more than twenty years.

Olair; Law, J. Petition by Niram B. Sackett against Matilda J. Broad-bridge, executrix of the last will and testament of Matilda Owen, deceased, to compel the payment of certain legacies. The petition was granted in the probate court, and ■defendant appealed to the circuit court. There was judgment at the circuit affirming the order of the probate court, ;and defendant brings error. One Matilda Owen died testate.

Condemnation proceedings by the village of Royal Oak against the Detroit, Grand Haven & Milwaukee Railway Company to open a street. There was judgment for petitioner, and respondent brings error.

Bill by Addie Doudt and Louisa Doudt against Henry C. Loveridge and Jessie M. Loveridge to have a land contract declared a mortgage, and for an accounting. From a decree dismissing the bill, complainants appeal.

Trover by John C. Stebbins against John Demorest fo.r the conversion of certain oats. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>Error to Montcalm; Davis, J.</p> <p>Assumpsit by Hampton E. Stevenson against Lew Sterling for the amount of a board bill. From a judgment for plaintiff, defendant brings,error.'</p>

Augustus G. Moser was convicted of contempt in refusing to produce certain books of account before a grand jury. The petitioner was convicted of contempt of court, in refusing to produce before the grand jury, in obedience to a subpoena duces tecum, certain books of account of the Bartlett Illuminating Company. The case is before us for review on certiorari.

<p>Mandamus by Otto T. Toepel to compel Joseph W. Donovan, circuit judge of Wayne county, to quash certain contempt proceedings.</p>

Trover by Samuel E. Byrne, Jr., against Jacob P. Werner and another for the alleged conversion of certain building material. There was judgment for- plaintiff, and defendants bring error.

Petition by John H. Mallar against Dickran H. Mallarian and Krekore Mallarian to set aside a certain mortgage foreclosure sale. Prom a decree dismissing the petition, complainant appeals.

Bill by Washington Lodge, No. 54, Independent Order of Odd Fellows, against Elizabeth M. Frelinghuysen to restrain the obstruction of an alley. From a decree dismissing the bill, complainant appeals. In 1835 and 1846 Edmund A. Brush platted certain lands in the city of Detroit, which plats were duly recorded. One of the blocks is surrounded by Randolph street, Macomb street, Brush street, and Monroe avenue.

Assumpsit by Harry Bradley, by next friend, against Willis J. Perkins to recover an apprentice reserve fund. There was judgment for plaintiff, and defendant brings error. Plaintiff was apprenticed to the defendant to learn the machinist trade. The period of service provided for was three'years.

Bill by Sarah Fullagar and Anthony Weber, administrators of the estate of Harriet Gibbs, deceased, against David Stockdale, administrator of the estate of William Gibbs, deceased, Sarah Beach, and John F. Gibbs, to remove a cloud from the title to certain land. From a decree for complainants, defendants appeal.

Case by Allen J. Gregory against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error. Defendant’s road runs through the village of Oxford. The main street (Washington) extends north and soúth through the village. The track is laid in the center of the street. On reaching Oxford street the track turns by a very sharp curve from Washington into Oxford street.

Assumpsit by Emma C. Dick against the Supreme Body of the International Congress on a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Quo warranto proceedings by Charles A. Blair, attorney general, on the relation of Waldo T. Potter, to determine the right of Donald McVichie and others to offices of managers of a limited partnership.

Assumpsit by Mary Sherman against Truman S. Eisher for rent. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

<p>Mandamus by Hallock Orsland to compel Joseph W. Donovan, circuit judge of Wayne county, to enter a final judgment.,</p>

Bill by Mary E. Carr and others against Hugh Carr to restrain the foreclosure of a mortgage. Defendant filed an answer in the nature of a cross-bill asking for the foreclosure of said mortgage. From a decree for defendant for less than the amount claimed, he appeals.

Petition by the American Steel & Wire Company, a judgment creditor of the Miller Hardware Company, against Selwyn Eddy, to enforce stockholder’s liability. There was judgment for defendant, and plaintiff brings error.

, presiding. Summary proceedings by William Cottrell against Gilbert J. Moran for the possession of certain real estate. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Petition by Chauncey J. Rumsey against Albert A. Griffin and Perry P. Powers, auditor general, for leave to file a bill of review. Prom a decree dismissing the petition, petitioner appeals. Petitioner’s land was sold at the annual tax sale in 1902, purchased by the State, and by the State sold to defendant Griffin. Petitioner filed his petition in the circuit court asking leave to file a bill of review.

Petition by Chauncey J. Rumsey against Albert A. Griffin and Perry P. Powers, auditor general, for leaye to file a bill of review. Prom a decree dismissing the petition, petitioner appeals.

<p>Error to Wayne; Frazer, J.</p> <p>Trespass vi et armis by John W. Noller against William Wright and George Wright. There was judgment for plaintiff, and defendants bring error.</p>

Assumpsit by the First National Bank of Cassopolis against Charles W. Carter and others for the amount of an alleged school order. There was judgment for defendants, and plaintiff brings error.

Mandamus by Harry W. Wise to compel the State veterinary board to issue a certificate. Relator, a graduate as a veterinary physician and surgeon from the Grand Rapids Medical College, applied to the respondent for a certificate to practice his profession. A certificate was denied him, and he asks the writ of mandamus to compel respondent to issue to him such certificate. The case is before us on petition, answer, and stipulation.

Case by Arthur E. Eox against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by William Culver against the South Haven & Eastern Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Grlenn S. Mack against James Sharp for malicious prosecution. There was judgment for plaintiff, and defendant brings error.

<p>Mandamus by Frederick Schmid to compel Clyde C. Chittenden, circuit judge of Benzie county, to proceed with the trial of a case in chancery.</p>

<p>Habeas corpus proceedings by James Butler to obtain Ms release from imprisonment in the State prison at Jackson.</p>

Petition by Chauncey J. Rumsey against Perry F. Powers, auditor general, and another, for leave to file a bill of review. From a decree dismissing the petition, petitioner appeals.

Bill by Herman C. Frieseke against Marie Frieseke for a divorce. On petition of defendant for a rehearing, the petition was dismissed, and defendant appeals.

Bill by tbe South Arm Lumber Company against Asa K. Silverthorne and others, copartners as Silverthorne & Co., to enforce a lien for the sawing of certain lumber. From a decree for complainant, defendants appeal.

Assumpsit by Helen M. Shook against the Marion Manufacturing Company for commissions on the sale of certain machinery. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Case by Thomas Neely against the Detroit Sugar Company for damages caused by the obstruction of a mill pond. There was judgment for plaintiff, and defendant brings error.

Ejectment by Henry Platz against Arthur Englehardt and Jessie Englehardt. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

Mandamus by the board of supervisors of Alcona county to restrain Perry F. Powers, auditor general, and Edwin A. Wildey, commissioner of State land office, from placing certain land on the homestead list.

<p>1. Assault and Battery—Damages—Instructions.</p> <p>In an action for an assault and battery, prosecuted by the administratrix of plaintiff, after his death, a statement by the court in his charge that plaintiff claimed that she was entitled to recover damages for the death of her husband was not erroneous, where there was nothing in that portion of the charge which inf ormed the jury what damages should be recovered, and that question was covered by a subsequent portion of the charge.</p> <p>2. Same — Computation of Damages — Present Worth of Wages.</p> <p>In an action for an assault and battery, an instruction that plaintiff is entitled to recover as damages whatever he might have lost in wages by the injury is erroneous, since the damages should be limited to the present worth of his wages.</p> <p>3. Same—Assault Committed in Reclaiming Property — Force Justified.</p> <p>In an action for an assault and battery in attempting to take from plaintiff a piece of board belonging to defendant that plaintiff was carrying away, an instruction that the jury should determine whether defendant used' more than sufficient force for the purpose of reclaiming his property was sufficiently liberal to defendant; there being no merit in an invocation of the rule that one may use such force as seems to him necessary to repel an assault.</p>

Bill by Melita 0. Grover against Frank P. Bishop and others for the foreclosure of certain mortgages. From a decree for complainant but denying a personal deficiency decree against defendant Bishop, complainant appeals. This is a suit in chancery to foreclose two mortgages given by defendants Miller to complainant. The only question in the case is whether complainant is entitled to a personal decree for the deficiency against the defendant Bishop.

Bill by Charles W. Turner against Thomas D. Brad-field and John E. Botsford, executors of the last will and testament of Sarah C. Turner, deceased, and others, for the specific performance of a land contract. From a decree for complainant, defendants appeal. The complainant by this suit seeks the specific performance of a land contract alleged to have been made with his aunt Sarah C. Turner, now deceased. Defendant Salem T. Turner was the husband of Sarah.

Bill by Edgar M. Smith against the township of Eaton and others to restrain the casting of drainage water upon complainant’s land. Prom a decree for complainant, defendants appeal.

Assumpsit by Frederick Piehl against Daniel Piehl for money had and received. There was judgment for plaintiff, and defendant brings error. Plaintiff- and defendant are brothers. Their father, Frederick Piehl, Sr., lived in Canada, where he died in April, 1900. He had three sons and one daughter. In 1895 he transferred to the defendant all his property, except some money, on condition that he take care of him the rest of his life. The property was worth about #1,500.

Case by John McKernan against the Detroit Citizens’ Street-Railway Company for personal injuries. There was judgment for defendant, and plaintiff brings error.

), J., presiding. Case by James Buxton against Thomas Ainsworth for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by Bryant Walker, trustee, against the city of Detroit and another to cancel certain tax sales. From the decree rendered, complainant appeals.

Bill by Susan' A. Lowe against the city of Detroit and another to cancel certain tax sales. From the decree rendered, complainant appeals.

<p>Mandamus by Fred Emery and Marvin E. Kenyon, drain commissioner of Ionia county, to compel Frank D. M. Davis, circuit judge of Ionia county, to dissolve a temporary injunction.</p>

Mandamus by Marvin E. Kenyon, drain commissioner of Ionia county, and Fred Emery to compel the board of supervisors of Ionia county to order a drain tax to be spread upon the rolls of certain townships. To review an order denying the writ, relátors bring certiorari.

Trover by Jolin Heenan against the Forest City Paint & Varnish Company and Clarence Dryer. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

Assumpsit by Thomas J. Cavanaugh against Ellen Robinson and others for services rendered. There was judgment for plaintiff for less than the amount claimed, and he brings error.

Bill by Robert Hopkins and others against Luke Crossley and others to set aside a trust. On a settlement of the decree, defendants appeal.

Case by Andrew R. O’Neill against Joseph James for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>1. Pleading—Notice of Special Defense—General Issue— Evidence Admissible.</p> <p>In an action on a written contract of employment, evidence that when the contract was entered into, both before and after defendant signed the same, plaintiff’s vice-president informed defendant that, unless the latter made a saving of §5,000 under the contract, he would not be required to pay the consideration agreed on, was not admissible under a plea of the general issue, without notice either to prove that the execution of the contract was procured by fraud, or that it tended to show that after the contract was made it was so modified that defendant was released from his obligation. Circuit Court Rule 7 b.</p> <p>3. Same—Appeal from Justice’s Court.</p> <p>Circuit Court Rule 7 b providing for notice of affirmative defense applies to suits originating in justice’s court.</p> <p>3. Same—Estoppel to Object.</p> <p>The fact that plaintiff, declaring on a written contract, proves without objection the conversation attendant upon its execution, does not entitle defendant, who has given no notice of special defense, to show his version of the conversation, avoiding and contradicting the contract, nor estop plaintiff from objecting that such evidence introduces an issue not pleaded.</p> <p>4. Evidence—Parol—Written Contract.</p> <p>A contract of employment, by which defendant agreed to pay plaintiff a salary of §25 per month for four months for keeping him posted on the state of the market and placing orders for goods to the best advantage, and, if the service was satisfactory, to continue the same for the balance of the year, purports to contain all the elements of the agreement, and hence parol evidence of a contemporaneous arrangement that, unless the contract operated as a saving to defendant of §5,000, he should not be bound, is inadmissible.</p> <p>5. Master and Servant — Contract of Employment—Trial — Notice to Discontinue.</p> <p>The service proving unsatisfactory, defendant was not obliged to notify plaintiff thereof at the end of the four months’ period or be bound for the balance of the year.</p> <p>6. Same—Evidence—Inference.</p> <p>Where, during the last three months of the four months such contract was in force, defendant neither obtained nor sought the benefit of the contract, plaintiff was bound to infer therefrom that the employment was unsatisfactory.</p> <p>7. Same—Receipt op Letters.</p> <p>Defendant’s receipt and failure to answer written communica-' tions sent by plaintiff through the mails did not estop defendant from subsequently contending that the services were unsatisfactory, and hence that he was not bound for the additional term.</p>

Petition by Samuel L. Smith and others against Perry F. Powers?auditor general, and Albert S. Heinemann to set aside certain tax sales. From a decree dismissing the petition, petitioners appeal.

Petition by James J. Keho and Frank Keho against Perry F. Powers, auditor general, and Ezekiel De Camp to set aside certain tax sales. From a decree for petitioners, defendant De Camp appeals.

Clair; Tappan, J. Assumpsit by D. M. Osborne & Company against . Charles B. Waterloo for goods sold and delivered. There was judgment for plaintiff for less than the amount claimed and awarding costs to defendant, and plaintiff brings error.

Trespass vi et armis by Mary A. Canton against Ira L. Grinnell and Clayton A. Grinnell, copartners as Grinnell Bros. There was judgment for plaintiff, and defendants bring error.

Assumpsit by Harry Helper and Samuel Helper, copartners as Helper Brothers, against the MacKinnon Manufacturing Company for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error.

<p>Habeas corpus proceedings by Mary Campbell to obtain her release from imprisonment in the Detroit house of correction.</p>

Assumpsit in justice’s court by the Computing Scale-Company against Burrell Tripp for goods sold and delivered. Plaintiff recovered judgment, and defendant brought certiorari to the circuit court. There was judgment at the circuit for plaintiff, and defendant brings error.

Mandamus by Charles A. Kent and Bryant Walker, trustees of the estate of Frederick Buhl, deceased, to compel Perry F. Powers, auditor general, to cancel the sale of certain land for the taxes of 1897.

Mandamus by Edwin Barlow to compel Marcus W. Riker, justice of the peace, to render a judgment of non-suit in an action of replevin. There was an order denying the writ, and relator brings certiorari.

Bertha Fischer presented a claim against the estate of William Fischer, Sr., deceased, for damages for an alleged breach of a covenant in a deed. The claim was allowed . by the commissioners, and the Union Trust Company, administrator, appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and defendant brings error.

<p>Exceptions before judgment from Livingston; Smith, J.</p> <p>Eobes C. Jewell was convicted of carrying away a public record.</p>

<p>Error to Ottawa; Padgham, J..</p> <p>Assumpsit by Peter Van Den Bosch against Torn Bouwman on a promissory note. There was judgment, for plaintiff and defendant brings error.</p>

Case by Marion L. Morgan against the Lake Shore & Michigan Southern Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by Bryant Walker, administrator de bonis non with, the will annexed of the estate of Joseph A. Moross, deceased, against the city of Detroit and another to cancel and set aside a sewer assessment. From a decree dismissing the bill, complainant appeals.

Submitted November 16, 1904. Case by the A. L. Lakey Company against the city of Kalamazoo for the flooding of plaintiff’s premises. There was judgment for plaintiff, and defendant brings error. The appellant’s statement of the case is not disputed, and we therefore adopt it. It is as follows: This is an action for permitting Arcadia creek to over? flow its banks and flood the plaintiff’s cellar. Plaintiff bad verdict and judgment for $1,760.

<p>Error to Kalamazoo; Adams, J.</p> <p>Assumpsit by Samuel O. Spier against the city of Kalamazoo for breach of a contract to open and grade a street. There was judgment for plaintiff, and defendant brings error.</p>

Elizabeth Taylor presented a claim against the estate of Amos R. Taylor, deceased, for the amount of certain promissory notes. The claim was disallowed by the commissioners. Claimant appealed to the circuit court, where she had judgment, and the estate brings error.

Assumpsit by Carson, Pirie, Scott & Company against Francis W. Fincher and Charles Jensen, copartners as F. W. Fincher Company, to recover the amount of a protested check. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Petition by Perry F. Powers, auditor general, for the sale of land delinquent for taxes: On objections filed by Eugene Carpenter. Prom a decree for petitioner, contestant appeals.

Case by Charles Clark, administrator of the estate of Thomas Russel, deceased, against the Wolverine Portland Cement Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Assumpsit by the Michigan Sanitarium & Benevolent Association against the city of Battle Creek for taxes paid under protest. There was judgment for plaintiff, and defendant brings error.