Volume 143 — Michigan Reports

<p>Exceptions before judgment from Montcalm; Davis, J.</p> <p>Thomas Hamilton was convicted of violating the local option law.</p>

Assumpsit by William O. Freeman against Stephen S. Ingerson for the value of certain wheat stored with defendant. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Fred P. Bunday against the Columbus Machine Company for breach of a contract for the sale of a certain engine. There was judgment for plaintiff, and defendant brings error.

Assumpsit by El wood C. Rogers and James Thoms against August F. Krumrei for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error.

<p>1. Appeal and Error — Estoppel to Allege Error.</p> <p>Whether or not there is a substantial conflict in the evidence . on a certain issue, is not before the court, where plaintiff in error requested the trial judge to charge that that issue was solely for the jury.</p> <p>2. Master and Servant — Contract oe Employment — Action for Breach — Instructions.</p> <p>In an action by a servant for breach of a yearly contract of employment, evidence examined, and held, not to support an instruction interpreting a witness’ testimony as being to the effect that the contract was terminable on 30 days’ notice.</p> <p>3. Witnesses — Production oe Books — Discretion oe Court.</p> <p>Where plaintiff served a subpoena duces tecum for the production of defendant’s books, and it appeared that there were some 21 of them, consisting of about 700 pages each, it was proper to require him to send some one to examine the books to at least ascertain what particular books were necessary, but plaintiff should not have been limited to sending some one to check over a statement from the books furnished by defendant.</p>

Assumpsit by Linden S. Wheaton, doing business as the New Jersey Automobile Company, against the Cadillac Automobile Company for breach of a contract for the sale of certain automobiles. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Trespass quare clausum fregit by Clement Labo against August Asam and others. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

Bill by Henry W. Walker and Harry C. Walker, co-partners as Walker & Co., against Sylvester T. Marion, Albert L. Melvin, and Anna L. Melvin to restrain the removal of certain bill boards. From a decree for complainants, defendants appeal.

Bill by Flora E. Myers against Ellsworth O. Myers for a divorce. On petition of defendant to be relieved from contributing to the support of a minor child. From an order granting the prayer of petitioner, complainant appeals.

<p>Appeal from Dickinson; Stone, J.</p> <p>Petition by the public schools of the City of Iron Mountain against William O’Connor and James B. Bradley, auditor general, to set aside a sale of land delinquent for taxes. From an order overruling a demurrer to the petition, respondent O’Connor appeals.</p> <p>The petitioner, the public schools of the city of Iron 'Mountain, filed its petition to vacate and set aside the decree rendered in the suit brought by the auditor general for the foreclosure of tax liens, and to cancel and set aside the deed made upon the sale to the respondent O’Connor. The facts are as follows: The land was lot 5, block 7, of •the city of Iron Mountain. The supervisor listed it upon the assessment roll in April, 1901. It was then assessable. After the completion of his roll the supervisor returned it to the board of review, which convened the last of May as the law requires. The board of review approved the roll, and returned it to the board of supervisors for equalization. On July 1, 1901, the petitioner bought the lot for . school purposes. The tax was subsequently duly levied thereon, and not paid. The lot was returned delinquent and sold at the annual tax sale under the decree of the court. To the petition the respondent demurred upon the ground that at the time of the assessment by the supervisor and the approval of the roll by the board of review, the land was taxable property, and it was the duty of the purchaser to pay the tax.</p>

Case by Joseph Kolodziejski, by next friend, against Herman F. Seestadt, Henry Seestadt, Charles Seestadt, and Otto Seestadt, copartners as Seestadt Brothers Manufacturing Company, for personal injuries. There was judgment for plaintiff, and defendants bring error.

Case by Sarah A. Whipple against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Sarah O. Whipple against the Michigan Central Railroad Company for personal injuries. There was judgment, for plaintiff, and defendant brings error.

Case by Edith Lansing against the Michigan Central Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error. This case involves the same accident and liability for alleged negligence as the companion cases, Sarah A. Whipple v. Railroad Co., ante, 41, and Sarah O. Whipple v. Railroad Co., ante, 47. The liability of the defendant for negligence depends upon the same facts as are involved in those cases and is ruled by them.

Separate actions on the case by Clarence Ackerman, and William Ackerman against the Cincinnati, Saginaw & Mackinaw Railroad Company for damages to land caused by flooding. The cases were tried together by stipulation, resulting in judgments for plaintiffs, and defendant brings error.

Bill by Walter H. Wilson against Clarissa Knapp to compel the specific performance of a land contract. From a decree for complainant, defendant appeals.

Case by Frank Rohn against Junius E. Osmun and others, members of the board of health of the city of Green-ville, for neglect while under quarantine. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

<p>Certiorari to recorder’s court of Detroit; Phelan, J.</p> <p>Thomas F. McNamara and Robert McO. Hull were convicted of obstructing an alley, and each sentenced to pay a fine of $35.</p>

Mandamus by John E. Bird, attorney general, to compel the State board of assessors to make an assessment against the property assessed by it at the rate determined by the assessed value of other property in the State. Certain railroad companies intervening. At the session of 1905 the legislature, by Act No. 282, Pub.

<p>1. Venue — Right to Change — Waiver.</p> <p>A defendant, who has a right under the statute (Act No. 309, Pub. Acts 1905) to a change of venue, does not waive it by delaying his motion until the day the case is set for trial pursuant to a stipulation that it might be set for trial as the first case of the term.</p> <p>3. Constitutional Law — Validity op Statutes — Policy of the Law.</p> <p>The wisdom of legislation is a question for the legislature, not the courts.</p> <p>3. Statutes — Construction—Presumption—Adoption from Sister State.</p> <p>Where the legislature adopts a statute from another State which has been construed by the courts of that State, it will be presumed the legislature had that construction in mind when it adopted the statute.</p> <p>4. Venue — Change—Application—Notice.</p> <p>An application for change of venue, under Act No. 309, Pub. Acts 1905, is properly denied where no notice is given as provided for motions generally by Circuit Court Rule 19 c.</p>

Clair; Law, J. Mandamus by Justin L. Paldi, county surveyor, to compel Ervin A. Cady, controller of the city of Port Huron, to assess the amount due relator for services as surveyor upon certain land. There was an order denying the writ, and relator brings certiorari.

Assumpsit by Charles S. Ginn and Frederick J. Ginn, copartners as the Ginn Coal & Stone Company, against the W. C. Clark Coal Company for breach of a contract for the purchase of certain coal. There was judgment for plaintiffs, and defendant brings error.

Quo warranto proceedings by Charles A. Blair, attorney general, on the relation of the Wolverine Fish Company, Limited, against A. Booth & Company to determine the legality of respondent’s incorporation: On motion to dismiss.

<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>

Bill by Ira M. Cobe against Jacob G. Summers and others for the foreclosure of a mortgage. From a decree dismissing the bill, complainant appeals. No objection being made to the statement of the'case by complainant and appellant in his brief, it will be taken as correct. Counsel for appellee has also made a statement. The rule, however, requires the appellee to point out, wherein the statement of the appellant is incorrect if he disputes it.

Case by Edward B. Moon against the Pere Marquette Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by the Fred Macey Company, Limited, against Frank Macey to obtain the cancellation of an agreement for the payment of royalties. From an order overruling a demurrer, defendant appeals. From a decree overruling the demurrer to the bill in equity in this case, the defendant has appealed. It is important to state quite fully the allegations of the bill.

Case by David A. Line against the Grand Rapids & Indiana Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Clair; Law, J. Assumpsit by James H. Fitzgerald and Thomas Fitzgerald against the Thompson Towing & Wrecking Association for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error.

<p>Error to Wexford; Chittenden, J.</p> <p>Trespass vi et armis by Samuel Byers against Lester Anderson. There was judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Frank Dierkes and Adam Klien against Julia Wideman to foreclose a mortgage. From a decree dismissing the bill, complainants appeal.</p>

<p>1. Appeal — Jurisdiction—Settlement op Case — Time.</p> <p>The jurisdiction of this court to hear an appeal upon its merits is supported against the objection that the case was not settled within four months after the entry of the decree, where the record does not show when the decree was entered, but shows that it was granted September 18th, that the case was settled as of January 18th, and the certificate dated February ' 1st states that the case is in the same form submitted for settlement, except that amendments submitted on that date by defendants are inserted.</p> <p>2. Fraudulent Conveyances — Setting Aside — Evidence—Sufficiency.</p> <p>On a bill to set aside as fraudulent a conveyance to a bank and to the creditor’s wife, evidence examined, and held, to sustain a finding that the sale of the property was for its full value.</p>

Assumpsit by William M. Heagany against the National Union on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Bill by William Lentz against Wilhelmine Lentz to set aside a deed alleged to have been obtained by fraud. From a decree from complainant, defendant appeals. , Complainant and defendant are husband and wife. They were married March 24, 1891. He was a widower with two children. She had been married twice. Her first husband, by whom she had one child, is dead. She was divorced from her second husband, by whom she had three children.

Assumpsit in justice’s court by David Lacomb against John Godkin for work and labor. Plaintiff recovered judgment, and defendant appealed to the circuit court.. There was judgment for plaintiff, and defendant brings error. This action of assumpsit for work and labor originated in justice’s court, where plaintiff recovered a judgment for $54.75. On the return day of the summons, and after plaintiff had declared orally, the defendant moved for security for costs.

Bill by Sherman L. Tower and Lewis E. Tower against the township of Somerset and Alfred Sutñn, highway commissioner, to restrain the construction of a sluiceway. From a decree for complainants, defendants appeal.

Ejectment by Margaret Lee and others against Anthony Livingston and Mary Livingston. There was judgment for plaintiffs on a verdict directed by the court, and defendants bring error.

<p>Appeal from Oakland; Smith, J.</p> <p>Bill by Ella Poppleton against Edgar C. Poppleton for an accounting. From a decree dismissing the bill, complainant appeals.</p>

Assumpsit by Peter C. Peterson against George Reichel, Adam Reichel, and Henry Reichel, copartners as Reichel Brothers, for breach of a logging contract. There was judgment for plaintiff, and defendants bring error.

Bill by Byron Hulett and others against the Marine Savings Bank, Margaret Lyons, and others to cancel and restrain the collection of certain promissory notes. From a decree for complainants, defendants Marine Savings Bank and Lyons appeal.

Case by Fentriss G. Kerlin against James H. Swart and William O. Swart, copartners as Swart Brothers, to recover damages for the loss of certain personal property by theft while a guest in defendants’ hotel. There was judgment for plaintiff, and defendants bring error.

Assumpsit by John Godkin against the township of Doyle for taxes paid under duress of levy. There was judgment for defendant, and plaintiff brings error.

Petition by Rufus R. G-oodell against Perry F. Powers, auditor general, and Allen F. Rees to set aside a sale of land delinquent for the taxes of 1894. From a decree for petitioner, respondent Rees appeals.

Assumpsit by the city of Detroit against John H. Patten for taxes. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by Louis Fowles against Conrad Rupert for breach of a contract to purchase certain hay. There was judgment for defendant, and an order deducting $75 from the taxable costs, from which order defendant brings error.

Bill by Eli Hudlemyer against Edward D. Dickinson, drain commissioner, and Jesse C. Stage, C. C. Wheeler, and George S. Woolsey, members of the board of review, to restrain the levy of a drain tax. Prom a decree for complainant, defendants appeal.

Assumpsit by the Central Bitulithic Paving Company against the city of Mt. Clemens upon a paving contract. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by Darius Cole, Jr., and others against Adelbert R. . Lee and Robert Maxwell, executors of the last will and testament of Darius Cole, deceased, Carrie L. Humphrey, and Carrie Cole to obtain a construction of said will. From a decree for complainants, defendant’s executors appeal.

<p>Exceptions before judgment from Tuscola; Beach, J.</p> <p>John Neal was convicted of violating the fish law.</p>

Bill by. James L. Hamilton and Henry T. Heald against the American Hulled Bean Company, Limited, and Charles D. Fuller to set aside the sale of certain shares of •corporate stock on the ground of fraud. From an order sustaining a demurrer to the bill, complainants appeal. ‘

Bill by Baxter H. Gilman against Grace G. Gilman'to remove a cloud from the title to certain land. From a .decree for complainant, defendant appeals.

Assumpsit by Lucinda Perry against the John Hancock Mutual Life-Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Bill by the Cleveland-Cliffs Iron Company and George J. Maas against Maria P. Gauthier and others to quiet title to land. From a decree for complainants, defendants Gauthier appeal.

Bay; Shepard, J. Bill by Hugh Francis against Edward Francis. to set aside a deed and for an accounting. From a decree dismissing the bill, complainant appeals.

Case under the civil-damage act by Ella Bailey against Fred D. Briggs for the sale of intoxicating liquor to plaintiff’s son. There was judgment for defendant, and plaintiff brings error.

Bill by Lorenzo Averill and Cynthia Averill against the Benzie County State Savings Bank and others to set aside an execution levy and sale. From a decree dismissing the bill, complainants appeal.

<p>Exceptions before judgment from St. Clair; Law, J.</p> <p>William Sauer was convicted of manslaughter.</p>

<p>Taxation — Tax Sale — Setting Aside — County Treasurer’s Certificate.</p> <p>A landowner is not entitled to have a tax sale set aside because, at the time of his purchase, he obtained a certificate from the county treasurer, under section 3957, 1 Comp. Laws, that the taxes had been paid, and that no tax liens existed for the previous five years, the sale being for a tax accruing more than five years prior to the date of the certificate, since the certificate only purports to cover the five years preceding its date.</p>

<p>Mandamus by Adolph Johnson to compel the common council of the city of Bessemer to approve a liquor bond.</p>

Cross-appeals from Monroe; Kinne, J., presiding. Bill by the city of Monroe against the Detroit, Monroe & Toledo Short Line Railway, the Toledo & Monroe Railway, and the Monroe Traction Company, to enjoin the defendants’ use of a certain street. From the decree rendered, all parties appeal.

Bill by Richard G. Moran and others against Gilbert M. Moran, executor of the last will and testament of Mary E. A. Moran, deceased, and others, for a construction of the last will and testament of Charles G. Moran, deceased. From a decree for defendants, complainants appeal.

Assumpsit by Elmer J. Jones against Abrabam Bloom-garden and William M. Ellenstein,- copartners as Bloom-garden & Ellenstein, for goods sold and delivered. There was judgment for plaintiff for less than the amount claimed, and be brings error. The material facts in this case are as follows: Plaintiff is a commission merchant in Baltimore, Md., dealing in different kinds of produce. Defendants are commission merchants in the city of Detroit.

Mandamus by the State Road Bridge Company to compel William G. Gage, circuit judge of Saginaw county, to vacate an order granting a temporary injunction, and denying a motion for a change of venue.

<p>Mandamus by Jerome K. Stock to compel Henry A. Mandell, circuit judge of Wayne county, to vacate an order allowing an appeal from a justice’s judgment.</p>

Clair; Tappan, J. Petition by James B. Bradley, auditor general, against John G. O’Neill, executor of the last will and testament of Peter J. O’Neill, deceased, and others, for the sale of land delinquent for taxes. Prom a decree for contestants, petitioner appeals.

Quo warranto proceedings by Richard S- Howland against A. D. Prentice to try the title to the office of School examiner of Van Burén county. There was judgment of ouster, and respondent brings error. This is a quo warranto proceeding to test the title to the office of member of the board of school examiners for the county of Van Burén. The legislature, by ActNo. 43, Pub.

Assumpsit by Clinton J. Snyder and Clarence L. Snyder, copartners as C. J? Snyder & Son, against the Patton & Gibson Company for work and labor. There was judgment for plaintiffs, and defendant brings error.

Petition by Alfred Jackson against Joseph T. Mason and others for a writ of assistance. From an order dismissing the petition, petitioner appeals.

<p>Error to Wayne; Brooke, J.</p> <p>Assumpsit by Martha Linsell against Henry Linsell. There was judgment for plaintiff, and defendant brings error.</p>

Mandamus by James Graham to compel George S. Hosmer, circuit judge of Wayne county, to vacate an order denying a special appeal from a justice’s judgment.

Bill by James Brassington and Ida Brassington against Hanley A. Waldron, Elvira S. Waldron, and Grove S. Waldron to enjoin a trespass. From a decree dismissing the bill for want of jurisdiction, complainants appeal.

Mandamus by John E. Bird, attorney general, to compel L. Burget Des Voignes, circuit judge of Van Burén county, to vacate an order denying a petition for an order to show cause why a mandamus should not issue to compel the board of supervisors to vacate an order submitting the question of prohibiting the sale of liquor under the local option law.

Assumpsit by Fritz Krapp against the Metropolitan Life-Insurance Company on a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

<p>1. Divorce — Decree—Provision eor Support op Minor Child —Death op Dependant.</p> <p>A provision in a decree of divorce against a husband, for the payment of a certain sum monthly, until the further order of the court, for the support of an infant child, is not discharged by the death of the husband.</p> <p>2. Same — Commutation op Payments.</p> <p>Under sections 8640, 8641, 8 Comp. Laws, the court has the power to make the award against a husband in divorce for the support of children a charge upon his property and alter it from time to time in the interests of justice, and on his death will fix the period for which the payments must continue, calculate their present worth, and make the sum a lien upon his property with priority over all other claims of his widow, heirs, and next of kin, except rights of dower.</p>

. Case by Mary A. Powers, administratrix of the estate of Nicholas J. Powers, deceased, against the Pere Marquette Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Barbara Kneisel presented for probate the last will and testament of Peter Kneisel, deceased. The will was allowed in the probate court, and George Kneisel and others, heirs at law, appealed to the circuit court. There was judgment for contestants, and proponent brings error.

Clair; Law, J. Bill by Minnie Carnahan against Nelson F. Carnahan for a divorce, in which a decree was entered for complainant, but requiring the payment of a certain fund to defendant : On petition of defendant and- Charles E. Ormsby, trustee in bankruptcy of defendant, complainant was found guilty of contempt in refusing to make said payment, and she appeals.

<p>Error to Calhoun; North, J</p> <p>Assumpsit by the city of Battle Creek against George S. Barnes for money had and received. There was judgment for plaintiff, and defendant brings error.</p>

<p>1. Mortgages — Deed Intended as Mortgage — Record.</p> <p>A deed absolute in form, but intended to operate as a mortgage, and accompanied by an unrecorded defeasance, is void as to a bona fide purchaser, it being recorded in the book of deeds instead of mortgages. Sections 8979, 8980, 8981, 8988, 3 Comp. Laws.</p> <p>3. Vendor and Purchaser — Bona Fide Purchaser — Pre-existing Debt.</p> <p>A creditor who surrenders security for a portion of his claim afforded by a declaration of trust and receives in its stead a deed of lands, is, as to such lands, a bona fide purchaser, as against a prior grantee claiming under a conveyance ineffectually recorded.</p>

Assumpsit by George B. Erpelding against John Mc-Kearnan for money had and received. There was judgment for plaintiff, and defendant brings error.

Bill ,by Ernest A. Dieterle against the Ann Arbor Paint & Enamel Company, William G. Henne, William F.. Breakey, Louis W. Schnierle, and others, to enforce a, liability for unpaid subscriptions to the capital stock of defendant corporation, and for the appointment of a receiver. From a decree dismissing the bill, complainant appeals.

Assumpsit by Harry W. Moore against the Hartford Life-Insurance Company on a policy of insurance. There, ,was judgment for plaintiff, and defendant brings error.

<p>Appeal from Wayne; Frazer, Brooke, Mandell, Rohnert, and Hosmer, Jj.</p> <p>Bill by Bryant Walker and Jessie W. Radcliffe against the city of Detroit and William H. Maybury, commissioner of public works, to enjoin an assessment against real estate. From a decree dismissing the bill, complainants appeal.</p>

Case by Harry W. Watson and others against the Detroit Journal Company for libel. There was judgment for defendant on demurrer, and plaintiffs bring error.

Assumpsit by George T. Calvert and Elmer C. Calvert, copartners as J. Calvert’s Sons, against Frank E. Schultz for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.

Case by Joseph Quick against the Wyandotte & Detroit River Railway and the Detroit United Railway for personal injuries. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

<p>Error to Kent; Wolcott, J.</p> <p>Case by Samuel B. Jenks against the Hart Cedar & Lumber Company for the diminution of security under a real estate mortgage. There was judgment for defendant, and plaintiff brings error.</p>

Case by Libbie Benson against William J. Ross, Edward Ross, and Charles E. Haight, for personal injuries. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Replevin by the Hackley National Bank against Joseph O. Jeannot and Florence B. Jeannot, copartners as J. O. Jeannot & Co. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

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

<p>Taxation — Tax Deed — Recovery of Possession — Action by Owner.</p> <p>Sections 140 and 143 of the general tax law (§§ 3959, 3963, 1 Comp. Laws), relative to the six months’ notice of redemption, and limiting the right of the owner to question the validity of the tax sale to six months after-service of such notice, apply only to tax titles obtained through courts of chancery, under the provisions of the present law, and do not apply to an action in ejectment to recover lands sold under the previous law in 1887 for the taxes of 1885, though the deed from the State was given after the enactment of the present law.</p>

Case by Bertha Martin against George W. Fisher, ;a druggist, and. Judson J. Moses and Andrew A. Baxter, his bondsmen, under the civil-damage act. There was judgment for plaintiff, and defendants bring error.

Bill by the Valley City Desk Company against the Travelers’ Insurance Company of Hartford to vacate and set aside a judgment. From an order overruling a demurrer to the bill, defendant appeals.

Appeal, from Van Burén; Carr, J. Bill by Luther W. Tucker against Daniel R. Tucker and others for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.

, presiding. Bill by Thomas D. Thorn against Alvina M. Scofield and another for a construction of the last will and testament of James L. Thorn, deceased. From a decree for complainant, defendants appeal.

Bill by Hugo A. Schneider, special administrator of the estate of William Livingston, deceased, against Charles F. Yosburgh and Jennie Yosburgh to set aside a deed. From a decree dismissing the bill, complainant appeals.

Assumpsit by Charles Chadwick, administrator of the estate of Chester Blineberry, deceased, against the Phcenix Accident & Sick Benefit Association on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Case by Frederick W. Siegel, by next friend, against the United Electric Heating Company for personal injuries. There was judgment for defendant notwithstanding -a verdict for plaintiff,' and plaintiff brings error.

Assumpsit by Edward J. Moinet, trustee, against Burn-ham, Stoepel & Company for money had and received. There was an order overruling a motion to set aside a return for want of proper service, and defendant brings certiorari.

Case by William D. Daniels against the Bay City Traction & Electric Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Clair; Tucker, J., presiding. Jessie A. Rapley presented a claim against the estate of James McKinney, deceased, for an amount claimed to be due to plaintiff’s assignor. The claim was allowed in part in the probate court,- and the executors appealed to the circuit court. There was judgment for claimant on a verdict directed by the court, and contestants bring error.

<p>Error to Houghton; Streeter, J.</p> <p>Trover by Joseph Croze against the St. Mary’s Canal Mineral Land Company. There was judgment for plaintiff, and defendant brings error.</p>

<p>1. Statutes — Title—Subject-Matter.</p> <p>The title of Act No. 627, Local Acts 1905, viz.: “ An act to annex certain territory * * * to the city of Detroit, and to apply and make operative in said territory all statutes and laws now or hereafter made applicable to and operative in said city,” clearly expresses the general purpose of the law, to which all its provisions are germane and incidental, within section 20, article 4, of the Constitution, notwithstanding incidential provisions, the effect of which will be to amend the charter and change the boundaries of the city.</p> <p>2. Constitutional Law — Legislative Powers — Delegation — Popular Vote.</p> <p>Act No. 627, Local Acts 1905, relating to the annexation of territory to the city of Detroit, and providing in section 9 that the act shall not become operative until the proposition to annex the territory shall be approved by a vote of the electors, does not make an unconstitutional delegation of legislative power.</p> <p>3. Same — Municipal Corporations — Local Self-Government.</p> <p>Municipal corporations are mere instrumentalities of the State for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure.1</p> <p>4. States — Legislative Districts — Apportionment.</p> <p>Act No. 627, Local Acts 1905, providing for the annexation of a part of the township of Springwells to the city of Detroit, was approved by the governor and given immediate effect on June 8, 1905. In accordance with the Constitution and laws of the State, an enumeration of the inhabitants thereof was made in 1904, and on June 16, 1905, an act was passed to apportion anew the representatives of the State legislature among the several counties and districts. The popular election under which the local act was accepted was held on. July 31,1905, and before the division, by the board of supervisors, of the county into legislative districts. Held, that the local act was not in violation of section 4, article 4, of the Constitution, which provides that each apportionment and division into representative districts by any board of supervisors shall remain unaltered until the return of another enumeration.</p> <p>5. Same.</p> <p>While the apportionment act of 1901 was supplanted by the apportionment act of June 16, 1905, it must be presumed that the legislature, in passing the latter act, had in mind Act No. 627, Local Acts 1905, which had been given immediate ■effect, and by the provisions of which the territory described was not to be annexed to the city of Detroit until the first Monday of April, 1906, and, construing the two statutes together, it appears that it was the intention of the legislature that during the interval the rights of the electors in such territory should be determined by the old law.</p> <p>6. Municipal Corporations — Annexation of Territory — Constitutionality.</p> <p>Act No. 627, Local Acts 1905, providing for the annexation of certain territory to the city of Detroit, is not unconstitutional as depriving the people of the annexed territory of their right to local self-government in their village and school matters.</p> <p>7. Constitutional Law — Due Process — Cities—Annexation of Territory.</p> <p>Act No. 627, Local Acts 1905, providing for the annexation of certain territory to the city of Detroit, is not unconstitutional as depriving the residents of the annexed territory of their property without due process of law by means of illegal tax: ation.</p> <p>8. Municipal Corporations — Annexation of Territory — Constitutionality.</p> <p>Act No. 627, Local Acts 1905, providing for the annexation of certain territory to the city of Detroit, is not objectionable as placing the inhabitants of the annexed territory outside of the limits of all senatorial and congressional districts, and thus depriving them of the right to be represented, as no provision is made in the act for changing the boundaries of such districts.</p>

Bill by Philip Ladensack and William M. Mertz, administrator with the will annexed of the estate of Carl J. Ladensack, deceased, against Thomas H. Johnson, Elizabeth Johnson, Charles Ladensack, and others, to set aside certain deeds. From a decree for complainants, defendants Johnson appeal.

Case by John Dallavo against Jacob Snider for slander. There was judgment for plaintiff for nominal damages only, and he brings error.

Assumpsit by J. Richardson & Company against George W. Noble and Walter A. Noble, copartners as G. W. Noble & Son, for goods sold and delivered. There was judgment for plaintiff for less than the amount claimed, and it brings error.

<p>1. Highways and Streets — Defective Sidewalks — Personal, Injuries — Instructions.</p> <p>In. an action against a city for personal injuries received on a defective sidewalk, the defense being contributory negligence, instructions examined, and held, not objectionable as submitting the question of contributory negligence solely on the theory that plaintiff had previous knowledge of the condition of the, walk, whereas defendant’s theory was that by the exercise of ordinary care at the time of the injury plaintiff might have observed the condition' of the walk.</p> <p>2. Trial — Instructions—Theory of Case — Misapprehension.</p> <p>Fairness to the trial coui't requires that, in case of misapprehension by the court in his charge as to counsel’s theory of the case, he should be promptly informed of his error.</p> <p>3. Damages — Personal Injuries — Origin of Symptoms.</p> <p>Where plaintiff in falling on a defective sidewalk bruised her knee, ran slivers into her hand, and sustained a rupture of the navel, the contention that the verdict should be set aside as including damages for paralysis, numbness, and other symptoms due to hysteria alone, cannot be maintained, since it is for the jury to say whether the physical injury was the direct cause of the paralysis and other symptoms.</p>

, presiding. Assumpsit by the board of supervisors of Macomb county against Gil. R. Lovejoy, principal, and the American Bonding & Trust Company, surety, on a county treasurer’s bond. There was judgment for plaintiff, and defendant Lovejoy brings error.

Bill by Milford L. Fitch against Edward A. Yatter, Mary Yatter, and the Mutual Home and Savings Association to reform a deed and to restrain the prosecution of a suit at law. From a decree for complainant, defendants Yatter appeal.

Summary proceedings by Thomas Gould and another against David D. Young and another for the possession of certain real estate. There was judgment for complainants on a verdict directed by the court, and defendants bring error.

Case by Meiko Meyer against Thomas W. Lally for false imprisonment and malicious prosecution. There ’was judgment for defendant, and plaintiff brings error.

Assumpsit by Samuel R. Bateson against the city of Detroit for money had and received. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by Frederick F. Speigel against the Haak Lumber Company for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.

Hume H. West was convicted of larceny, and took out a writ of error: On motion to admit to bail, and for stay of sentence pending the appeal.

Mandamus by the Detroit Reduction Company to compel Francis A. Blades, city controller of Detroit, to enter into a contract with relator as authorized by the common ■ council. There was an order denying the writ, and relator brings certiorari.

Case by Edgar Eligh against William Goldie for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by Albert D. Bechtel and Sarah A. Bechtel against the Saginaw Building & Loan Association to restrain the foreclosure of a mortgage. From a decree for defendants, complainants appeal.

Ejectment by Benjamin O. Morse against Perry E. Powers, auditor general, Edwin A. Wildey, commissioner of the State land office, and Edward H. Gillman, trustee. 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 Charles Clifford and Thomas E. McCann. From a decree for petitioner, contestants appeal.

<p>Appeal from Sanilac; Beach, J.</p> <p>Bill by Edward Bullis against the Farmers’ State Bank of Deckerville and Edward M. Mark for an accounting. From a decree for' complainant, defendants appeal.</p>

Petition by George F. Brown and A. B. Cullen against Robert Napper and John E. Fitzpatrick for a writ of assistance : On motion of Robert Napper for leave to file a bill of review.

Ejectment by William J. Meagher against Henry Dumas and Sophia Dumas. There was judgment for plaintiff for a part only of the land claimed, and he brings •error.

Bill by the Grand Rapids, Grand Haven & Muskegon Railway Company against Ursula M. Stevens for the specific performance of a land contract. Prom a decree for complainant, defendant appeals.

Bills of interpleader by the Great Camp Knights of the Modern Maccabees and the Modern Woodmen of America against Ella E. Deem and Alice J. Phillips to determine the right to the proceeds of certain policies of insurance. Erom a decree for defendant Deem, defendant Phillips appeals.

Case by Anna M. Ranson against the city of Sault Ste. Marie for damages caused by the raising of the street grade in front of plaintiff’s property. There was judgment for plaintiff, and defendant brings error. Portage avenue is, or was, one of the principal streets in defendant city.

Case by Aggie Morris against the city of Sault Ste. Marie for damages caused by the raising of the street grade in front of plaintiff’s property. There was judgment for plaintiff, and defendant brings error.

Bill by Olive Adams against Ira Fisher and others for the construction of a quitclaim deed. From a decree for complainant, defendant Fisher appeals.

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

Assumpsit by the Hastings Industrial Company against James Moran for an unpaid subscription to the capital stock of a corporation. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by Lavern Amos-Richia against the Northwestern Mutual Life-Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Case by Charles Burrman against the Grand Trunk Western Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case made from Kent; Wolcott, J. Assumpsit by the North Park Bridge Company against the township of Walker for taxes paid under protest. There was judgment for defendant, and plaintiff appeals.

<p>1. Replevin — Instructions—Confusion of Goods.</p> <p>Where defendant in replevin admits that he authorized plaintiff to remove his property, and only complains that he also took away certain of defendant’s material, no instruction on confusion of goods is necessary.</p> <p>2. Same — Property Wrongfully Taken.</p> <p>Where there is evidence to support defendant’s contention; that plaintiff unlawfully took certain of defendant’s property on the writ, defendant, having elected to take judgment for its value, is entitled to have his claim submitted to the jury.</p>

.Error to Clinton; Stone, J. Case by Jacob Weitzel against the village of Fowler for personal injuries. There was judgment for plaintiff, and defendant brings error. Plaintiff recovered a verdict and judgment for $150 for damages claimed to have been received by falling on a defective sidewalk of the defendant village. He and his wife were walking home from a visit to a neighbor.

Bill by the J. E. Greilick Company against Maud Taylor and David Smith to enforce a mechanics’ lien. Front a decree for complainant, defendant Taylor appeals. Complainant is a dealer in building materials. Defendant Smith is a building contractor. Smith made a written contract with defendant Taylor’s husband to erect a dwelling “on the south side of Fifth street, Traverse City, Mich.,” for #1,680.