Volume 144 — Michigan Reports

Case by Leonard Miller, by nest friend, against the Detroit United Railway for personal injuries. There was judgment for plaintiff and defendant brings error.

Bill by Joseph W. Cromwell against Frank Hughes to enjoin the removal of certain buildings. Defendant filed an answer in the nature of a cross-bill to quiet title to .land. From a decree for complainant, defendant appeals. Complainant filed this bill to enjoin the defendant from removing a house built partly on land claimed by complainant and partly upon land conceded to be owned by the defendant.

Bill by Edward W. McCormick and others against Nancy M. Weaver and others to restrain the erection of an obstruction in a public street. From a decree dismissing the bill, complainants appeal.

Ebenezer Harris was convicted of taking indecent liberties with the person of a female child and sentenced to imprisonment for not less than seven and not more than ten years in the State prison at Jackson.

Frank X. Provost was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for not less than five years in the branch of the State prison at Marquette.

Bill by Thomas Gray, supervisor, and John Dunn, highway commissioner, of Isabella township, against Sherman D. Eldred, county drain commissioner, and the Joliet Bridge & Iron Company to enjoin the closing of a contract for the purchase of certain bridges. From an order overruling certain legal objections to complainants’ right to maintain the bill raised by the answers and determined before proofs were taken, defendants appeal.

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

Assumpsit by John Monroe and' others, copartners as the Traverse City Sprayer Company, against the Hiekox, Mull & Hill Company for the breach of a contract to manufacture certain machines. There was judgment for plaintiffs, and defendant brings error.

<p>Certiorari by C. Newton Smith to review an order denying a motion to quash contempt proceedings: On motion to dismiss the writ.</p>

Habeas corpus proceedings by Felix Brock to obtain his release from a warrant of rendition. There was an order denying the writ, and petitioner brings error: On motion to dismiss the writ.

<p>Venue — Change—Statute—Applicability—Condemnation Proceedings.</p> <p>Proceedings to condemn land for public use, such as railroads, do not follow the course of the common law, and hence are not within the statute (Act No. 309, Pub. Acts 1905) providing for change of venue in any civil action upon application.</p>

Mandamus by August Jakobowski to compel James B Bradley, auditor general, to issue a certificate of error. This is an application to compel the respondent to issue a certificate of error, under section 98 of the general tax law (Act No. 206, Pub. Acts 1893). The State Savings Bank of Ionia owned the lands in fee simple. On December 15, 1899, it entered into a land contract with the relator for their sale; the relator agreeing to pay the taxes.

Mandamus by Evelyn Keith and others to compel Albert Wendt and others, composing the common council of the village of Eairview, to declare relators elected to certain offices and to issue certificates therefor. There was an order granting the writ, and respondents bring certiorari.

Assumpsit by the board of supervisors of Arenac county against the board of supervisors of Iosco county for money paid for the care of an indigent smallpox patient. There was judgment for defendant, and plaintiff brings error.

<p>Error to Clinton; Stone, J.</p> <p>Ejectment by William Toolan and Alexander McMillan against John M. Longyear and James Monroe. There was judgment for plaintiffs, and defendants bring error.</p>

Mandamus by Walter T. Ward to compel Rush Culver, mayor, and the common council of the city of Marquette to grant a recount of the votes cast for the office of mayor.

Bill by Nancy E. Rundle against Walter J. Scully to set aside a mortgage foreclosure. Defendant filed an answer in the nature of a cross-bill asking for an accounting. From a decree for defendant, complainant appeals.

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

Mandamus by John 33. Bird, attorney general, on the relation of Edward Scott and others, to compel Zebina McColeman and others, constituting the township board -of the township of Atkinson, to deliver to relators the money, books, and papers of said township pursuant to -Act No. 677, Local Acts 1905.

Mandamus by Walter T. Ward to compel Rush Culver, mayor, and the common council of the city of Marquette to issue to relator a certificate of election.

Case by Lena Corbs, by next friend, against the Michigan Central Railroad Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Mandamus by the Grand Rapids & Indiana Railway Company to compel James B. Bradley, auditor general, to cancel the sale of certain land delinquent for taxes.

Creditors’ bill by Daniel J. Campau, George M. Vail, and Francis F. Palms agaiúst the Detroit Driving Club, in which Fred T. Moran and Worthy L. Churchill intervened by petition: On settlement of the decree, Campau, as receiver of defendant, and as one of the complainants, and the interveners appeal.

Bill by the Union Trust Company against the Preston National Bank, the Union Trust Company, as receiver for the City Savings Bank, and the Detroit United Railway for an accounting. From the decree rendered, defendants Preston National Bank and the Union Trust Company, receiver, appeal.

Carrie Collins was convicted of murder in the first degree and sentenced to imprisonment for life in the State prison at Jackson.

Assumpsit by the county of Montmorency against Edward J. Putnam, principal, and Lewis Jenson and others, sureties, on a county treasurer’s bond. There was judgment for plaintiff for less than the amount claimed, and it brings error.

, presiding. Summary proceedings by Mary A. Smith against C. Newton Smith and Charles N. Smith for the possession of certain real estate. There was judgment for complainant, and defendants bring error.

<p>Mandamus by the Bradley-Watkins Company and the Cedar River Land Company to compel John W. Adams, circuit judge of Kalamazoo county, to vacate an order denying a motion for a change of venue.</p>

Trespass quare clausum fregit by William J. Clarke against John S. Case. There was judgment for plaintiff, and defendant brings error.

Herbert Hering petitioned for the probate of the last will and testament of Charles F. Jaeserich, deceased. The hearing was dismissed and transferred To the county of Hillsdale, and petitioner appealed to the circuit court. There was judgment at the circuit for petitioner, and George W. Mosher, guardian of Carl S. Jaeserich, brings error.

Case by Margaret Herbeck against Edward Germain for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case made from Kent; Wolcott, J. Bill by Edward S. Covey and Grace Covey against James B. Leslie, Mary Uptegrove, and others, to foreclose a mortgage. From a decree for complainants, defendant Uptegrove appeals. November 28, 1890, Henry Watson, as guardian of complainants, then minors, took from defendants Leslie a note for $465, due five years after date, and a real-estate mortgage to secure payment of the same, and the mortgage was duly recorded.

<p>Divorce — Cruelty—Evidence—Sufficiency.</p> <p>On a bill for divorce, evidence examined, and held, not to support a decree on the ground that defendant’s penuriousness made life with him unbearable.</p>

Case by Charles A. Rolfe against the Lake Shore & Michigan Southern Railway Company for damages to personal property. There was judgment for plaintiff, and. defendant brings error.

Assumpsit by the Detroit Southern Railroad Company against Alexander Y. Malcomson for freight charges. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Bill by Augustus P. Connor and William J. Connor, executors of tbe last will and testament of Richard H. Connor, deceased, and others, against Máxime J. Rivard and others to set aside a deed. Prom a decree for complainants, defendants appeal.

<p>Appeal from Wayne; Hosmer, J.</p> <p>Bill by Wilhelm Eggert against Gustave Eggert and Wilhelmina Eggert to set aside certain deeds. From a, decree for complainant, defendant Gustave appeals.</p>

Bill by the First Commercial & Savings Bank of Wyandotte against the Trenton Milling Company, Arthur G. Judkins, Eleanor A. Judkins, William B. Park, the Harmon-Whitmore Company, and Sprout, Waldron & Company, to foreclose a land contract, and to restrain the removal of certain machinery. Defendant Sprout, Waldron & Company filed an answer in the nature of a cross-bill to enjoin complainant and defendant Trenton Milling Company from disposing of the machinery.

Assumpsit by Sophia Draggo against the West Bay City Sugar Company for rent. There was judgment for plaintiff, and defendant brings error.

Bill by James H. Andrews, Cornelia I. Andrews, and the Reed City Electric Company against August Weckerman, highway commissioner, Amos Rosenberg, supervisor, and the township of Richmond, to enjoin the obstruction of complainants’ water rights. From a decree for complainants, defendant township appeals.

Bill by Esek Pray, executor of the last will and testament of Jonathan, Railer, deceased, against Richard Railer, Charity Cooper, individually and as guardian of Nellie M. James, a minor, and others, for a construction of said will. Defendant Cooper filed an answer in the nature of a cross-bill praying for an accounting as said guardian. From a decree for cross-complainant, defendants appeal.

Bill by William Roberts against Albert S. Sholes, Charles F. Gates, and Frederick C. Ballard to establish complainants’ title in certain land, and to restrain the prosecution of an action at law. From an order overruling a demurrer, defendant Ballard appeals.

Bill by the Fidelity Mutual Life-Insurance Company of Philadelphia, against Alexander W. Blain, executor of the last will and testament of August Bender, deceased, to cancel a policy of insurance, and to restrain an action at law. From a decree for complainant, defendant appeals.

Quo warranto proceedings by the people of the State of Michigan, on the relation of John E. Bird, attorney general, against the Grand Rapids… Held: a board of directors elected, officers elected by said board, and that the respondent now claims •never to have been legally dissolved, never to have surrendered its charter, and that it is now engaged in carrying on the business which it was organized to do; that this business is the same as .that carried on by the O. & W. Thum…

Bill by Mary E. Quinnin against Alexander Quinnin, Hallock Orsland, and others, to foreclose a mortgage: On petition of Alexander Quinnin to set aside an execution and levy for a deficiency. From a decree for petitioner, defendant Orsland appeals.

Bill by the Detroit United Railway against Dennis Smith, Alice Smith, Elizabeth Axford, and others, for the specific performance of a land contract, and to restrain the prosecution of actions at law. From a decree for complainant, defendants Smith and Axford appeal.

Case made from Ingham; Wiest, J. Ejectment by William O’Connor against Frank L. Carpenter and others. There was judgment for plaintiff, and defendant Carpenter appeals.

Bill by Lucy Wilcke against Joseph Duross and Henry Weber, copartners as Duross & Weber, and Henry A. Dickson, sheriff, to set aside a judgment and execution. From a decree dismissing the bill, complainant appeals.

<p>Exceptions before judgment from Alcona; Connine, J.</p> <p>Frank Christian was convicted of trespass under Act No.i^lO, Pub. Acts 1903.</p>

Bill by Libias L. Carpenter against Perry F. Powers, auditor general, and others, to set aside sales of land delinquent for taxes: On motion of defendant auditor general to dismiss tbe bill. From an order granting tbe motion, complainant appeals. On August 3, 1903, tbe complainant, tbe owner of tbe original title to tbe lands described, filed her bill of complaint against the auditor general, State treasurer, and ten other parties.

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

Replevin by E. S. Knowles & Son, a copartnership, in justice’s court, against William J. Cavanaugh. There was judgment for plaintiffs and defendant took a special appeal to the circuit court. There was an order denying a motion to amend the declaration, and plaintiffs bring certiorari.

, presiding. Certiorari by Uriah Hatt to review an order of the> township board of Napoleon township, and others, affirming an order of the highway commissioner discontinuing a highway. There was judgment for respondents, and relator brings error.

Bill by William Kerr and others against John J. Rupp and Fred P. Brewer, executors of the last will and testament of Moore Kerr, deceased, to cancel and annul certain assignments of complainants’ shares of deceased’s estate as obtained by fraud, to restrain payment of the shares to defendant Rupp under the assignments, and to compel payment of their respective shares to complainants. From an order overruling a demurrer to the bill, defendants appeal.

Bill by Wilbur Brotherton against William A. Gilchrist, Perry F. Trowbridge and the Sanilac Sugar Refining Company for a partnership accounting. From a decree dismissing the bill as to defendant Gilchrist, the other defendants appeal.

Assumpsit by Simon Frohlich against the Independent Glass Company for breach of a contract of sale. There was judgment for plaintiff for less than the amount claimed, and he brings error.

Bill by Edmund A. Chapoton, executor of the last will and testament of Thomas L. State, deceased, against John E. Prentis and James T. Keena, trustee, to reach assets disposed of in fraud of creditors. Erom a decree for complainant, defendant Prentis appeals.

Jacob J. Reichert presented for probate the last will and testament of John George Reichert, deceased. The will was allowed in the probate court, and Julius H. Reichert and another appealed to the circuit. There was judgment for proponent, and contestants bring error.

Bills by Sidney T. Miller, trustee, against Joseph R. McLaughlin, Robert J. McLaughlin, Collins B. Hubbard,, and others, to foreclose certain mortgage securities, and by the same complainant against Bryant Walker, trustee, Louise M. Jebb, and the Detroit Savings Bank to enforce a trust. The suits having been consolidated and a decree entered for complainant, defendant Hubbard appeals.

<p>Certiorari to Grand Traverse; Mayne, J.</p> <p>Mandamus by the board of supervisors of Grand Traverse county to compel Ernest H. Allyn, county surveyor, to keep the field notes and records of his office in a depository under Act No. 79, Pub. Acts 1905. There was an order granting the writ, and respondent brings certiorari.</p>

Mandamus by Charles Leahy and Susan Leahy to compel Morse Rohnert, circuit judge of Wayne county, to vacate an order denying a motion to correct a journal entry.

Bill by Charles Tiedemann against Charles Kroll, John Kroll, and the Stanton Farm Company, Limited, in aid of an execution, and for the specific performance of a land contract. Defendant John Kroll filed an answer in the nature of a cross-bill to set aside a sheriff’s deed. From a decree dismissing the bill and granting the prayer of the cross-bill, complainant appeals. Affirmed.

Replevin by Emma Sanford against Andrew Millikin. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

<p>1. Appeal and Error — Briefs — Failure of Appellee to Answer Claim of E!rror.</p> <p>It is the duty of this court to answer a claim of error though the answer is not suggested by counsel for the appellee.</p> <p>3. Equity — Rules—Pleading—Failure to Answer Allegations of Bill.</p> <p>Under Chancery Rule 10<2, failure of defendant, in a suit to enforce a mechanics’ lien, to answer an allegation of the bill that personal service of the lien statement was not made upon him because of his absence from the county, admits the truth of such allegation and obviates the necessity of proving it.</p> <p>3. Mechanics’ Liens — Statement of Lien — Service—Agent of Owner.</p> <p>Service of a mechanics’ lien statement on the wife of the owner residing on the premises, he being absent, and she apparently having the authority usually exercised by wives over homestead premises in the absence of their husbands, is service on the owner’s “agent having in charge such premises ” within the meaning of section 10715, 3 Comp. Laws.</p> <p>4. Husband and Wife — Agency of Wife — Evidence.</p> <p>On the issue whether the wife of defendant was his agent in charge of the homestead during his absence, evidence examined, and held, to support a finding that she was, notwithstanding an affliction that prevented her speaking in words, and the testimony of the husband that a certain employe “generally supervises everything for me when I am not there.”</p> <p>5. Mechanics’ Liens —Lien of Subcontractor — Payments to-Contractor — Allowance. "</p> <p>Payments to the principal contractor, made without requiring of him the sworn statement required by section 10713, 3 Comp. Laws, which are not distributed pro rata among the subcontractors, laborers, and materialmen, cannot be allowed in his favor as against the lien of a materialman.</p> <p>6. Same — Failure of Contractor to Perform — Recoupment of Damages.</p> <p>The owner cannot complain that he is not allowed to recoup his damages for the contractor’s failure to perform, where, disallowing unauthorized payments to the contractor, more than enough remains to pay his damages and the claim, allowed the lien claimant.-</p>

Assumpsit by Lauritz S. Eranck against Jennie Mc-Gilvray and Blanche Baker for work and labor. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Assumpsit by Anna S. Munger against Clark Sanford for money had and received. There was judgment for plaintiff, and defendant brings error.

Mandamus by Henry S. Sharp to compel Frank D. M. Davis, circuit judge of Montcalm county, to vacate an order denying a motion to dismiss an appeal from probate court.

Mandamus by Eobert S. Moreland and Eugene W. Crane, copartners as Moreland Bros. & Crane, to compel G-uy M. Chester, circuit j udge of Lenawee county, to set aside an order granting a change of venue.

Mandamus by Charles E. White, prosecuting attorney, to compel Prank Bracelin, justice of the peace, to issue a warrant for violation of the liquor law. There was an order granting the writ, and respondent brings certiorari.

), J., presiding. Mandamus by Frank T. Woodworth to compel the Old Second National Bank and others, and by the same relator to compel the Maltby Cedar Company and others, to turn over their books and papers for relator’s inspection: On motion for a change of venue. There was an order granting the motion, and respondents bring certiorari.

Separate petitions for mandamus by Louis C. Cramton and Henry K. Gustin to compel George A. Prescott, secretary of State, to submit the question of direct nominations by political parties.

Assumpsit by Anthony J. Detlaff against the Ideal Manufacturing Company for work and labor. There was judgment for plaintiff, and defóndant brings error.

Bill by George E. Cole against Mary E. Cole for a divorce : On petition of defendant for a modification of the decree. From an order amending the decree, complainant appeals.

Summary proceedings by Ellen Delaney and others against the Michigan Elm Hoop & Lumber Company for the possession of certain real estate. Defendant brings error from a judgment for complainants.

Bill by Cora Finch against John B. Haynes to set aside a deed to quiet title to land, and for an accounting. From a decree for complainant, defendant appeals.

Bill by Matilda Petroski against Matt Minzgohr and the C. H. Worcester Company for an accounting. From a decree for complainant, defendant Minzgohr appeals. In December, 1891, one Edward Phelps purchased from the United States the W. £ of the W. \ of section 15, town 51 N., range 34 W. He received a patent, but never recorded it. He immediately cut off and sold the valuable pine timber, abandoned the land, left the State, and went to Minnesota. He paid no taxes.

Case by Rollin H. Hopkins against the Michigan Trac-. tion Company for personal injuries. There was an order overruling a demurrer to the declaration, and defendant brings certiorari.

<p>1. Mandamus — Propriety—Remedy by Appeal.</p> <p>Appeal and not mandamus is the remedy to review a final order dismissing a bill, though the dismissal was upon the ground of lack of jurisdiction.</p> <p>2. Same — Adequacy op Remedy — Injunction.</p> <p>The bill in such case being to restrain the officers of a foreign, corporation from disposing of its property, the contention that, if mandamus be not granted, the defendants will have disposed of the property before the appeal can be decided, is untenable, as complainant may appeal immediately and obtain an injunction from this court, which will preserve the corporate assets until the appeal is decided.</p>

Assumpsit by Ernest Krause against Fred J. Cook for money-obtained by fraud and deceit. There was judgment for plaintiff, and defendant brings error.

Bill by Thomas B. Allen and Susan Allen against the Thornapple Electric Company to enjoin the maintenance of a dam. ■ From a decree for complainants, defendant appeals.

Bill by Lottie Dumas against Harry Geer to remove a cloud from the title to land. From the decree rendered, 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.

Assumpsit in justice’s court by Sidney Beam against .'Sylvanus G. Reynolds and another for goods sold and delivered. Plaintiff recovered judgment, and defendant Reynolds appealed to the circuit court by writ of certiorari. There was an order vacating the judgment of the justice’s court, and plaintiff brings error.

Case by Odelia Renders, by next friend, against the Grand Trunk Railroad Company of Canada, the Detroit, Grand Haven & Milwaukee Railroad Company, and the Detroit United Railway for personal injuries. There was judgment for plaintiff against defendants Grand Trunk Railroad Company and Detroit United Railway, and they bring error.

Case by Lottie Epelett against the city of Sault Ste. Marie for personal injuries. ‘ There was judgment for plaintiff, and defendant brings error.

.Assumpsit by John W. Weaver against George D. Richards for a commission for the sale of land. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Mandamus by John C. Patterson and others to compel Joel C. Hopkins, circuit judge of Calhoun county, to re-tax and disallow a bill of costs in certain drain proceedings. Relators removed certain drain and auxiliary condemnation proceedings by writ of certiorari to the circuit court, where judgment went against them. Respondents presented to the county clerk their bill of costs for taxation, including the following items, viz.: ATTORNEY PEES.

Bill by Albert S. Harris against the Detroit Typographical Union, No. 18, and others, fro set aside an order of expulsion and to restrain the reporting of such expulsion to. complainant’s employer. From a decree dismissing the bill, complainant appeals.

Clair; Law, J. Trespass quare clausum fregit,by Lorinda Pelton against Diehard D. O’Keefe and others. There was judgment for defendants, and plaintiff brings error.

Assumpsit by the Wyandotte Brewing Company against the Hartford Fire-Insurance Company on a policy of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

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

<p>Appeal from Kent; Ferkins, J.</p> <p>Bill by Ervin E. Barrett against Ward B. Miller and others to establish an interest in certain land. From a decree for complainant, defendants appeal.</p> <p>Complainant, a timber cruiser of experience, learned that his son-in-law, one E. J. Hart, of Grand Rapids* Mich., had been employed in the capacity of a broker to dispose of 9,658.10 acres of land, situated in Gogebic county, Mich., at the price of $5.75 per acre, for a commission of 9J¿ per cent. The land was valuable chiefly for the„ growing timber, and, the owners’ estimates of the quantity of the timber being unreliable, complainant, upon the request of Hart, was employed by Hart, by the consent of the owners, to make a new examination of the lands and a new estimate of the timber, his services to be paid for by $465 — by the owners if a sale was made, and one-half that sum to be paid by the owners and one-half by Hart in case a sale was not made; the estimates to belong' to the owners. Complainant and his son visited the land and did make an estimate, spending some two months in the work. Returning to Grand Rapids, he found that Hart had not yet procured a purchaser for the land, and he conceived the idea of himself 4 procuring a sale of a portion of the lands at the price asked by the owners for the entire tract, and to secure for himself that portion of the lands not so sold, as well as an interest with the purchasers. Without making any arrangements with the owners, and without the knowledge or consent of the owners, he set about the carrying of his scheme to a conclusion. He made an arrangement with Mr. Hart, later reduced to writing and dated back to September 9, 1903, as follows:</p> <p>“ Memorandum of agreement made this 9th day of September, A. D. 1903, between Edward J. Hart of Grand Rapids, Mich., party of the first part, and Ervin E. Barrett, of the same place, party of the second part,</p> <p>“ Witnesseth: That said party of the second part agrees to secure customer or customers to accept on or before October 5, 1903, together with said second party, an option on lands 'in T. 46 — 45 and T. 47 — 45, Gogebic county, Michigan, owned, by Wakefield and- Thomas Estates; said customers to pay the sum of $56,000 or approximately $8 per acre for 7,040 acres of said lands contained in sections 13, 14, 19,-20, 21, 22, 23, 24, 25, 26, 27, 28. 29. 30. 31. 32, 33. 34. and 35 of T. 46 — 45.</p> <p>“ That said party of the first part as agent for said lands, agrees, in consideration of services of said party of second part in securing such customers, and negotiating deal, and in consideration of the sum of $5.00 to instruct Charles O. Brewster, attorney for owners of said lands, to make deed to the remainder of said lands, about 2,618/10 acres in sec. 28 T. 47 — 45 and sections 1, 2, 3, 4, 5, 6, 7, 8, 11, and 12 T. 46 — 45, to said party of second part and to make deed to said 7,040 acres to customers as said second party shall direct, when said customers and said second party shall have accepted said option by depositing 10 per cent, of purchase price of $56,000.</p> <p>“ Dated Grand Rapids, Mich., September 9, 1903.</p> <p>“Edward J. Hart.”</p> <p>Complainant made two plats of the land; one containing, describing, and estimating 7,040 acres, and the other the remainder of the land. He interested certain possible purchasers, and took some of them to examine the lands upon representations as to the quality and value of the timber, and upon undertaking to pay certain expenses if the lands were not as represented. He represented that there was in existence an option, given by the owners of the land, for the sale of 7,040 acres at the price of $8 per acre, which option he could and would procure for the benefit of the purchasers upon certain conditions. At one time, at least, his proposition was put in writing and submitted in the form of a letter or prospectus to certain of the persons whom he proposed to interest. Among other things which this letter contains is the following':</p> <p>“As evidence of the estimator’s confidence in his figures, he has an opportunity to sell the whole property, or, rather, his option on the same, to one of the large lumber dealers in this city and netting him a reasonable profit on his investment, which consists of two months’ time spent-in the woods estimating the timber and securing the option. But he is so confident of the value of this property that he prefers to organize a company in which he will have one-eighth interest for his option and work, and to that end offers to stipulate in the articles of agreement that the parties furnishing the money to handle the proposition may take any one of the following four options:</p> <p>“1. He will leave the management of the property and the question of whether it is sold, if a reasonable profit on the investment is offered, or a mill, railroad, and other equipment put in and the timber worked out, entirely to the investors, and share to the extent of o'ne-eighth interest in the profits accruing from either method.</p> <p>■ “2. The investors to have the privilege of giving him</p> <p>for his one-eighth interest the timber over and above such estimates as furnished herewith.</p> <p>“3. The investors to have the privilege of giving him for his one-eighth interest the profits on the transactions over and above $190,000.</p> <p>“4. The investors to have the privilege of giving him for his one-eighth interest the mineral rights on the land after the timber is disposed of. * * *</p> <p>“The option on this property as it now stands expires September 15th and calls for $56,000 cash. However, we believe that an extension of 30 days’ time can be secured by making a reasonable showing of good faith in asking for time to confirm estimates. * * *</p> <p>“You will also bear in mind that this option is on a complete transfer of the property — includes the real estate, mineral rights, and timber.”</p> <p>This prospectus was dictated by defendant Stevenson on or about September 10th in the presence of complainant, and who knew then that the land belonged to two New York estates, but without knowing the names of the owners, and who was told by complainant that Hart was the local agent for the lands. This prospectus was issued before any of the defendants or any persons whom they represented had made an examination of the lands. An agreement was finally made by complainant with certain persons, whose interests are now represented by defendants, to purchase 7,040 acres of land for $8 an acre, or substantially $56,000, with the understanding, ho'wever, that there was in existence an option for said lands at said price, by means of which the lands could be secured. None of the defendants had seen the option. There was in fact no option for 7,040 acres, or for any of the land, and neither Hart nor complainant knew that an option could be procured. The agent of the owners, being applied to by Mr. Hart for an option, declined to give one until he was furnished with the names of the intending purchasers, and declined to give an option, except in accordance with the terms upon which Hart had authority to find purchasers for the land. Hart represented to-the owners’ agent that complainant was an intending-purchaser ; that some- of the lands he would purchase on. his own account and some of them with other persons. An option, drawn by Hart, was forwarded, but was not executed; an option in the following form being executed and returned to him, the names of the purchasers appearing therein, being furnished by Hart:</p> <p>“Memorandum of agreement between Charles O'. Brewster, of New York, as attorney for the estate of Cyrus Wakefield and the estate of Joseph B. Thomas, as first party, and E. A. Turnbull, of Grand Ledge, Michigan, and Edwin Owen, L. J. Stevenson, E. E. Barrett, Frayer Halladay, and Edward J. Hart, of Grand Rapids, Mich., as second party:</p> <p>“The first party grants an option to and including October 5, 1903, on the lands owned by his clients in township forty-six (46), range forty-five (45), and section, twenty-eight (28), township forty-seven (47), range forty-five (45), Gogebic county, Michigan, about ninety-six hundred and fifty-eight and 10/100 acres (9,658.10) at five dollars and seventy-five cents per acre.</p> <p>“This option is granted to the second party jointly and severally upon the following terms:</p> <p>“ Said second party, or any of them, shall have the privilege of examining said lands within the period of this option and to accept the same on or before October 5, 1903, on depositing 10 per cent, of the purchase price, or about fifty-six hundred dollars ($5,600), as a guarantee to take said lands if the deeds, abstracts, and tax histories show a clear and valid title in the grantors</p> <p>“ Upon acceptance of said option on or before October 5, 1903, and the deposit of fifty-six hundred dollars ($5,-600) in the Grand Rapids Savings Bank, to be held subject to the order of the first party, as guarantee and part payment for said lands, the proper deeds and abstracts, are to be forwarded by first party to said bank for examination, according to instructions to be given by said Edward J. Hart. \</p> <p>“ In case the second party refuses to complete the purchase of the lands, a good and valid title being offered by thé grantors, the said deposit of fifty-six hundred dollars ($5,600) is to be forfeited to said first party as attorney as fiiforossid</p> <p>“ Dated New York, September 16, 1903.</p> <p>[Signed] “Charles O. Brewster,</p> <p>“Atty. for Estate of Cyrus Wakefield and Joseph B. Thomas.”</p> <p>There was and had been no other option. On the 5th day of October, 1903, defendants deposited in the bank at Grand Rapids the sum of $5,600, which they were told by the complainant was the sum required to be deposited according to the option. Complainant promised that the option should be deposited at the bank at the same time and could there be examined. It was not deposited until the next day, when it was examined by the defendants, or by some of them, and they then learned for the first time the owners’ terms of sale. They made a copy of it, consulted among themselves and with attorneys, and, without communicating with complainant, wired the New York attorney to make the deed to Luther J. Stevenson, as'trustee, and on the same day wrote him a letter to the same effect, as follows:</p> <p>“ Oct. 6th, 1903.</p> <p>“ Charles O. Brewster,</p> <p>“New York, N. Y.</p> <p>‘ ‘ Dear Sir: In accordance with the option given by you Sept. 16, 1903, to myself and others, we deposited $5,600 with the Grand Rapids Savings Bank yesterday, to be paid on the purchase price of timber and land consisting of about 9,658 acres located in Gogebic county, Mich., upon our acceptance of the deeds to the property.</p> <p>“As we have not perfected our organization, I am instructed to advise you to make the deeds running to me, Luther J. Stevenson, trustee.</p> <p>“ Please advise me, upon receipt of this, when the deeds will probably be here, and oblige,</p> <p>“Yours respectfully.</p> <p>“Diet. L. J. S.”</p> <p>Up to this point complainant is shown to have been the veriest intermeddler in the affairs of others. He had no interest in the lands, was not employed by the owners, and was not an intending purchaser of any of the lands. Both he and Hart had misrepresented — one to the intending purchasers; the other to the owners — the facts. On the 8th of October defendants appointed a meeting, at which complainant was invited to be and was present. There is controversy as to what took place at this meeting. The following day another meeting was had, at which complainant charged the defendants with an attempt to deal around him and leave him out, and the defendants charged complainant with misrepresenting the deal to them. There was further correspondence:</p> <p>“10/12/1903.</p> <p>“ To Charles O. Brewster,</p> <p>“ 52 Liberty St.,</p> <p>“New York City:</p> <p>“ Make no deeds to Hart or Barrett for Gogebic county property covered by option of September sixteenth. Letter follows.</p> <p>“L. J. Stevenson.”</p> <p>“New York, Oct. 15th, 1903.</p> <p>“L. J. Stevenson,</p> <p>“ Widdicomb Bldg.,</p> <p>“G. Rapids:</p> <p>“Yours twelfth. Cannot give deed except to parties named in option, • unless all, including Hart, consent. Such deed now ready. Wire answer.</p> <p>“C. O. Brewster.”</p> <p>“In re T. 46-47, R. 45, Michigan.</p> <p>“ October 12, 1903.</p> <p>“ Mr. L. J. Stevenson,</p> <p>“Grand Rapids, Michigan.</p> <p>“ Dear Sir: I acknowledge receipt of your letter of the 6th inst.</p> <p>‘ ‘ As all my dealings have been with Mr. Hart in this matter, I prefer that the instructions as to the names of the grantees in the deeds shall come from him.</p> <p>‘ ‘ I hope you will be able to arrange matters so that there will be no further delay.</p> <p>“Yours truly,</p> <p>[Signed] “C. O. Brewster.”</p> <p>“New York, Oct. 15, 1903.</p> <p>“Messrs. Stevenson, Hall ad ay, Miller, Owen &</p> <p>Young,</p> <p>“ Grand Rapids, Mich.</p> <p>“ Gentlemen: I have received today by registered mail yonr letter of the 12th inst.-, and note its contents.</p> <p>“ I regret exceedingly that any dispute should have arisen between yourselves and Mr. Hart. As the broker in the transaction, and one of the parties named in the option dated Sept. 16th, I have confined my negotiations to him as a representative of the purchasers.</p> <p>“ In naming grantees in the deeds, I am bound by the terms' of the option, and have no right to insert the names of others without the consent of all the parties to the option, including Mr. Hart. The soundness of this proposition I am sur you will admit upon careful consideration.</p> <p>“As to the substitution of Messrs. Miller & Young in place of Mr. Turnbull, I must have a letter or telegram from Mr. Turnbull consenting to such a change in naming the grantees in the deed. Upon receipt of your letter I wire Mr. Stevenson as follows:</p> <p>“ ‘ Yours twelfth. Cannot give deeds exceptto parties named in option, unless all, including Hart, consent. Such deed now ready. Wire answer.’ Which I hereby confirm.</p> <p>“ At the present writing (5 p. m.) I have no reply to my telegram.</p> <p>“Hoping that the matter may be speedily adjusted, I am,</p> <p>“Yours truly,</p> <p>“C. O. Brewster.”</p> <p>Certain deeds were prepared and executed, and instructions given, for the purpose of permitting the lands to be conveyed directly to defendant Stevenson as trustee. On October 24th defendant Stevenson went to New York and had an interview with the attorney for the owners, where a new option was prepared and executed, in words and figures as follows:</p> <p>‘ ‘ Memorandum of agreement between Charles O. Brewster, as attorney for the estate of Cyrus Wakefield and the estate of Joseph B. Thomas, as first party, and Luthei J. Stevenson, Frayer Halladay, Charles F. Young, and Edwin Owen, of Grand Rapids, Mich., and Ward B. Miller, of Clarksville, Mich., as second party:</p> <p>“ Whereas, an option was made by said first party to E. A. Turnbull and others for the purchase of said lands in Gogebic county, Mich., dated September 16, 1903, and under said option the sum of $5,600 has been paid into the Grand Rapids Savings Bank, October 5, 1903, said payment being made in the following proportions, viz.:</p> <p>“Luther J. Stevenson, $650-.</p> <p>“ Ward B. Miller, $1,300.</p> <p>“Erayer Halladay, $1,300.</p> <p>“ Charles F. Young, $1,300.</p> <p>“Edwin Owen, $i;050.</p> <p>“It is agreed by the parties hereto that said option, dated September 16, 1903, shall be terminated on or about October 27, 1903, and that thereafter the first party will tender proper deeds conveying the lands in question to the second party in proportion as they contributed to the sum of $5,600 on October 5th, 1903.</p> <p>“The second party shall deposit in the Commercial Savings Bank in Grand Rapids, Mich., the sum of $5,600 •on or before October 29, 1903, and thereupon the first party shall release the sum of $5,600 heretofore paid to the Grand Rapids Savings Bank October 5th, 1903; but, until such deposit is so made in the Commercial Savings Bank to bind this contract, the sum of $5,600 now in the Grand Rapids Savings Bank is to remain subject to the terms of the option dated September 16, 1903.</p> <p>“ Upon the payment of the sum of $49,934.07, in addition to the sum of $5,600 paid on account as above mentioned, the deeds are to be delivered by said bank to the second party.</p> <p>“In case the second party refuses to complete the purchase of the lands within a reasonable time after deeds conveying a good and valid title are offered by the grantors, the said deposit of $5,600 is to be forfeited to the first party, as attorney, as aforesaid.</p> <p>“It is understood and agreed that this agreement is subject and subsequent to the option of September 16, 1903, aforesaid, and shall be operative only and if and when the said option of September 16, 1903, has been terminated.</p> <p>“ Said party will immediately notify the parties to said option of September 16, 1903, that he elects to terminate the same unless performed by 3 p. m., October 27, 1903. But if any party thereto fully complies with the terms thereof on or before said date, 3 p. m., October 27, 1903, this agreement shall be null and void.</p> <p>“Dated October 24, 1903.</p> <p>“ Charles O. Brewster,</p> <p>“ Attorney for Estates of Cyrus Wakefield and Joseph B. Thomas.</p> <p>“ Luther J. Stevenson.</p> <p>“Ward B. Miller.</p> <p>“Frayer Hallad ay.</p> <p>“Charles F. Young.</p> <p>“Edwin Owen.”</p> <p>This last arrangement was finally completed by a deed of the lands to the defendant Stevenson as trustee. The defendants refused to pay complainant anything or to give him any interest in the land, and he filed his bill to have his interest in the lands determined and to compel a conveyance of them to himself. The decree which was entered requires the defendant Stevenson to convey to complainant in severalty all of the lands except the 7,040 acres, and to convey to him also an undivided one-eighth interest in all of the other lands, and in default of such conveyance it is provided that the decree may be recorded and that it shall operate as a conveyance of said lands. It is from this decree that the defendants have appealed.</p> <p>It is set out in the bill of complaint: That complainant learned on or about September 9th of the terms and conditions required by Mr. Brewster, and that Hart, in giving him the information, proposed that if complainant would find a purchaser for certain of the lands at a price which would pay the full sum asked for all the lands, he (Hart) would direct and cause a conveyance to be made to complainant of the balance of the lands. That the written memorandum of such proposition and agreement, already set out, was made. That, acting in reliance upon it, he procured purchasers upon the terms stated, and prepared and submitted to such intending purchasers a written proposition,—</p> <p>“Offering to do certain things in the way of realizing profits out of said lands in case of said purchase thereof, and among said things offered that, if said purchaser would pay substantially $56,000 for the said 7,040 acres of land, your orator would, attend to the lumbering operations thereon and have nothing for his services until the net profits amounted to $190,000 to said purchasers; your orator, after the $190,000 profits had accrued, to have whatever remained of said lands and timber, or your orator to have out of said lands, the mineral rights contained therein, or that your orator have a conveyance as a part of said purchase of an undivided one-eighth interest in all of said 7,040 acres of land. That your orator submitted said proposition to E. A. Turnbull, Prayer Halladay, Edwin Owen, and Luther J. Stevenson, and a little later to Ward B. Miller and Charles P. Young.</p> <p>“That the said first-named parties agreed, if your orator would go upon said lands and show the same to them, or to such of them as they might designate, they would purchase the said lands through your orator upon the terms of said written proposition, electing for themselves which interest they would give your orator as specified in said proposition, provided said lands turned out upon examination to be as good as the estimate then furnished by your orator to them. And ycur orator, acting upon said agreement and understanding, at great expense to himself, again went upon said lands with the said parties first above named and a man hired by your orator for that purpose and spent many days and suffered great hardships and privations in exhibiting the said lands and the timber thereon to the said parties, who, after examining the same with your orator, declared that said lands were better than your orator had represented, and accepted the said proposition of your orator, and agreed to buy an undivided seven-eighth interest in said lands for the said sum of $56,000, taking a conveyance to themselves of said seven-eighth interest and to your orator an undivided one-eighth interest therein.”</p> <p>That, agreeably with the premises, the said intending purchasers prepared a document to be deposited in the Grand Rapids Savings Bank, together with 10 per cent, of the purchase price, which specified that they were to receive a conveyance of said 7,040 acres of land ‘ according to the terms of a certain written option concerning the purchase thereof, which option is more fully described in a later part of this bill.” That at the same time said Stevenson, Owen, and Halladay, with Miller and Young, entered into a written contract and agreement, signed by all of them, that they would purchase said 7,040 acres and pay therefor $56,000, and that said instrument was signed with the distinct understanding between said persons and complainant that complainant was to have a one-eighth interest in said lands.</p> <p>“Your orator further shows that during all the negotiations with said parties none other than the said 7,040 acres of land were shown them by your orator, or talked of or considered by the said Halladay, Owen, Stevenson, Miller, and Young, or any of them. And according to this agreement and understanding between them and your orator, the said sum of $56,000 was to be paid by them distinctly as the full purchase price of the said 7,040 acres of land and no more; and that a one-eighth interest in said lands was to be conveyed to your orator.”</p> <p>The option which was first given by Mr. Brewster is set out, with the averment that it was deposited in the bank with the sum of $5,600 and with the written instrument prepared by'Stevenson, and that at the time the $5,600 was deposited—</p> <p>“None of the said proposed purchasers expected said option would be in their names at all, but it was understood and expected by all parties the said option would be in the name of your orator; that by mistake in instructions given to said Brewster the said option was prepared and sent to said Hart in the form above mentioned, but was allowed to remain in that form oh account of the short time remaining to comply with that option and in reliance by your orator upon the said proposed purchasers that they would carry out their agreement and understanding with your orator. * * *</p> <p>‘ That up to the time said money was deposited in the bank as aforesaid,, none of said parties, except the said Hart and Brewster, knew that your orator, in addition to the one-eighth interest in said 7,040 acres of land, was to receive the other lands mentioned in said option; but shortly thereafter they learned that the said Brewster had agreed to convey all of said lands for the sum of $55,534, and thereupon began to endeavor to procure a conveyance to themselves of all of said lands, including said 7,040 acres to themselves, thereby taking and receiving the benefit of the consideration so performed and paid by your orator, with the purpose as your orator is informed and believes, and therefore charges, of depriving your orator of all the benefit and advantages of his time and services in said transaction and interest in said lands.”</p> <p>To this bill, defendants Miller, Halladay, and Owen filed a joint and several answer. The defendant Stevenson filed an answer and cross-bill. The cross-bill was answered by complainant. The answers aver that complainant represented, and all dealings with him were based upon such representations, that he held an option from the owners upon the lands he was attempting to' dispose of, and that the lands he described and sought to sell to defendants were all of the lands upon which he held such option, and were the entire holdings of the said estates in the towns in which said lands were situated, and that for said 7,040 acres of land the said estates were asking $56,000. They deny that they, with knowledge of the true facts, ever entered into any arrangement or agreement with complainant, or with such knowledge ever discussed with him the acceptance of any of his propositions, until, after learning of the alleged deceit practiced, they did so in an effort to compromise and settle with him and ■avoid expense and annoyance of possible litigation. It is •also averred that complainant expressly represented that Re was receiving no benefit or advantage out of the matter, excepting only the interest he proposed should be given to him by defendants; that the price he was paying to the owners was $8 per acre; that in an earlier option which he held upon the lands the price was fixed at $7.75 per acre; and that in seeking an extension of option to October 5th the price was raised to $8, which concession he was obliged to make to secure such extension. It is averred'that defendants sought to seethe alleged option before depositing their money in the bank and were put off with evasive and false assertions. Defendant Stevenson claims, in his cross-bill, that complainant agreed to pay him one-half what he (complainant) realized out of the transaction.</p> <p>The printed record contains more than 1,000 pages. The foregoing is an outline merely of facts and of claims disclosed by the record. Further references will be made to the testimony as discussion proceeds. The learned trial judge was of opinion that a valid contract, though one voidable for fraud at the option of defendants, existed between complainant and defendants, and- that defendants must perform it, saying:</p> <p>“ I can find no case where a contract, otherwise valid, has failed of enforcement on account of fraud, where the party seeking to avoid it has insisted, upon receiving its fruits.”</p>

Case by John A. Brink against the city of Grand Rapids for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Two employés of the fire department of defendant city were engaged in flushing the hydrants Of the city. They were just about to open a hydrant on a high part of Canal street in the city when the plaintiff drove along in a wagon drawn by one horse.

Supplemental bill by Noah W. Cheever, individually •and as special administrator of the estate of Leonhard Gruner, deceased, and others, against Caroline P. Ellis, individually and as executrix of the last will and testament of Joseph J. Ellis, deceased, Hudson P. Ellis, and John J. Ellis, for an accounting. From an order overruling a demurrer, defendants appeal.

Assumpsit by Minnie Kaufmann against Charles F. Burton for breach of a contract to convey certain real estate. There was a judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>Mandamus by William Conrad to compel L. Burget Des Voignes, circuit judge of Van Burén county, to vacate an order denying a motion to discharge relator from arrest and avoiding his bail bond.</p> <p>Relator was arrested on a writ of capias ad respondendum on the 11th day of September, 1905, and was taken into custody by the sheriff of Van Burén county in ac-. cordance with an order to hold to bail indorsed on said writ. Relator, having given a bond in the sum of $2,000, was released, and afterwards, on the 26th day of September, 1905, put in special bail as required by law. On the 10th day of November, a copy of the declaration in the cause was served upon relator, to which he filed his plea of the general issue on the 24th day of November, 1905, and, thereupon, made a motion to quash the action on the writ of capias in arresting the relator, to discharge the relator from bail, to avoid the bail bond, and discharge the sureties thereon for the following reasons:</p> <p>“(a) Because it appears from the affidavit that the said affidavit, upon'which the writ of capias ad respondendum was issued in pursuance of section 9996 of the Compiled Laws of 189?, was issued after the said writ had been issued.</p> <p>“ (b) Because the affidavit does not state a single fact or circumstance, but conclusions drawn by the deponent therein.</p> <p>“ (c) Because the affidavit does not state in terms, nor does the fact appear from what is stated in the affidavit, that it is made on the personal knowledge of the deponent, Howard Clowes.</p> <p>“ (d) Because the affidavit does not show that that which is stated therein is within the knowledge of the deponent, Howard Clowes.</p> <p>“ (e) Because the deponent, Howard Clowes, states in the affidavit in these words: ‘All of which said actions</p> <p>and doings took place at the village of Lawton and at other places in said county unknown to this deponent. ’</p> <p>“ (/) Because the affidavit does not allege, as provided by section 9996 of the Compiled Laws of 1897, that the affiant believes that the plaintiff is entitled to recover against the defendant for the cause of action stated.</p> <p>“ (g) Because the affidavit does not set out any cause of action.”</p> <p>This motion, having been brought on to be heard, was overruled by the circuit judge, and thereupon relator made a motion to set aside the order denying his motion, which motion was also denied. Relator thereupon applied to this court for writ of mandamus to require the circuit judge to vacate the order and to enter an order discharging the relator from arrest and avoiding the bail bond.</p> <p>The affidavit upon which the.capias was based is, so far as necessary to be considered here, as follows:</p> <p>“That on or about the 15th day of April, A. D. 1905, at the village of Paw Paw, in said county, this deponent married one Phoebe McPadden (since known as Phoebe Clowes) and that at the time of the commission of the wrongs hereinafter mentioned, the plaintiff and his said wife were living together as man and wife in the village of Lawton, in said county; that immediately after the marriage of this deponent and the said Phoebe McFadden, they were living together as husband and wife in the said village of Lawton, and that the said William Conrad lived with them in their said home; that immediately thereafter, the said William Conrad laid plains to separate the said plaintiff from his said wife, and wrongly and wickedly and without the privity or connivance of the plaintiff, at various times since the said 15th day of April, 1905, debauched the said Phoebe Clowes, all of which said actions and doings took place at the said village of Lawton and at other places in said county unknown to this deponent and prior to the date of the commencement of this suit, by means whereof, the affections of the said Phcebe Clowes for the said plaintiff, which had hitherto existed, was wholly alienated and destroyed; that, by reason of the premises, the plaintiff has wholly lost the comfort, society, aid, and assistance of his said wife, which, during all the time aforesaid, he otherwise ought to have had and' enjoyed.</p> <p>“Deponent further says that during all of said time since the said marriage, the said William Conrad has, by false and fraudulent representations to the said Phoebe Clowes, endeavored and has succeeded in destroying the affections of the said Phcebe Clowes for the said plaintiff and has induced the said Phoebe Clowes to leave the home of this plaintiff, whereby his home is broken up and his domestic happiness destroyed; that the said Phoebe Clowes and the said William Conrad have together left the home of this plaintiff and now are residing together, and that the said Phoebe Clowes is living with and caring for the home of the said William Conrad, instead of living with this plaintiff and caring for his home, as she ought.</p> <p>“Deponent further says that, in furtherance of his scheme to rob this plaintiff of the affections of his said wife, the said William Conrad has endeavored to hire other people to induce this deponent to drink intoxicating liquors and to become intoxicated, that he might picture this deponent in an unfavorable light to the said Phoebe Clowes and thereby assist him in his nefarious scheme to rob this plaintiff of the affections of his said wife.</p> <p>“Deponent further says that in furtherance of the scheme of the said William Conrad to rob this plaintiff of the affections of his said wife and to debauch and carnally know her, the said Phoebe Clowes, he has offered the said Phoebe Clowes large sums of money if she would leave this plaintiff and go and live with him, the said William Conrad.</p> <p>‘ ‘ This deponent further says that he is informed and believes that the said William Conrad and Phoebe Clowes intend and are about to elope and leave the State of Michigan; that they have taken possession of this plaintiff’s money and property amounting to a large sum, to wit, the sum of six hundred dollars, and are together scheming and conniving to take away from the State of Michigan with them all of this plaintiff’s said money and property.</p> <p>“ Deponent says that the said William Conrad has so thoroughly supplanted this deponent in the affections of his said wife that she has left his home and refuses to have anything more to do with this deponent, and that the conduct of the said William Conrad with the said Phoebe Clowes, has become the talk and scandal of the village of Lawton; that it has broken this plaintiff’s home, and that the said William Conrad has alienated all the plaintiff’s wife’s affections for him, the said plaintiff, causing him great sorrow and anguish.”</p>

, presiding. Bill by Wilbert H. Gustin against Frank C. Merrill and others for an accounting. From the decree rendered, both parties appeal.

Assumpsit by the Detroit Shipbuilding Company against Andrew W. Comstock and another upon a promissory note. There was judgment for plaintiff, and defendants bring error. Affirmed.

Garnishment proceedings by William I. Fell against John J. Gorman as garnishee defendant of James N. Riley. There was judgment for plaintiff, and defendant brings error.

<p>Appeal from Chippewa; Steere, J.</p> <p>Bill by George A. Cady, special administrator of the estate of Augusta Brown Burgess, against John W. Burgess, Charles O. Stratton, and Cora J. Stratton for an accounting. From the decree rendered, complainant appeals.</p>

Petition by John W. Burgess to determine the heirship and for a partial distribution of the estate of Augusta W. Brown-Burgess, deceased. There was judgment confirming the order of the probate court, and Hannah Stribling, Minnie Reidy, and Emilie Metzger bring error.

Case by Grace Greenman, by next friend, against Miles O’Riley for seduction. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Frank Powell against the Champion Iron Company for goods sold and delivered. There was judgement for plaintiff, and defendant brings error.

Case by George Dahrooge against the Pere Merquette Bailroad Company to recover the value of goods lost in transit. There was judgment for plaintiff, and defendant brings error. .

Case by Bernard E. Krause against Henry E. Lewis -and Charles P. Yost for personal injuries. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Bill by George M. North and Victor EL Bradshaw against the Globe Fence Company, the Collingwood Brick Company, and others, to enforce a mechanic’s lien. Defendant Collingwood Brick Company filed an answer, in the nature of a cross-bill, to enforce a materialman’s lien. From a decree establishing the lien claimed in the cross-bill, defendant Globe Fence Company appeals.

Bill by Lucius B. Brockett, Frank M. Brockett, and Benjamin D. Brockett, copartners as L. B. Brockett & Sons, the Chas. A. Strelinger Company, and Joseph T. Ryerson & Son against Harry P. Lewis, individually and as trustee, Morgan M. Lewis, and Syra E. Lewis, to enforce a trust and for an accounting. From an order sustaining demurrers to the bill, complainants appeal.

Bill by Frank Hoffman against .the Flint Land Company, Limited, and Perry F. Powers, auditor general, to set aside the sale of land for taxes. From a decree dismissing the bill, complainant appeals.

Joseph Fisher was convicted of forgery and sentenced to imprisonment in the branch of the State prison at Marquette for not less than eight nor more than ten years.

Louis Haxer was convicted of an assault with intent to kill, and sentenced to imprisonment for life in the State prison at Jackson.

<p>1. Criminal Law — Accused as Witness — Cross-Examination.</p> <p>Where a person, on trial for crime is a witness in his own defense, no harm results from asking him on cross-examination ' if this is the first time he has ever been in trouble, where he answers in the negative, and, in response to further questions, gives the circumstances of his former arrests and convictions.</p> <p>2. Same — Failure to Object.</p> <p>Complaint cannot be urged against questions asked of accused on cross-examination which were within a rule which counsel for accused suggested, and which were not objected to.</p> <p>3. Same — Trial—Rape—Argument of Counsel.</p> <p>In a trial for rape, reference to the respondent by the prosecuting attorney as “this thing” and “this brute,” while undignified, is not reversible misconduct, where the uncontradicted testimony indicates that, whether the intercourse was or was not consented to, the act itself was accomplished with such force, and the parts were left in such condition, that pain accompanied the coition, and respondent himself gives testimony which, in effect, is a self-characterization, little, if any, more favorable than that given to him by the prosecuting attorney.</p> <p>4. Rape — Trial—Charge.</p> <p>In a prosecution for rape it is not error to refuse a requested instruction that, in respect to prosecutrix’s resistance, the jury should consider the relative size and strength of the parties, where, though prosecutrix’s weight is shown to be about 125 pounds, there is nothing to show their relative size or strength, and the jury are fully instructed as to the necessity of resistance to the uttermost, and that, irrespective of the force previously employed, if consent was in fact given, though never so reluctantly or tardily, the offense would not be rape.</p> <p>5. Same.</p> <p>There is no merit in an objection to a phrase of the charge, “ The people should be protected against such outrages if they have been perpetrated,” where the sentence continues, “ Every citizen should be protected against being convicted of such an outrage if he is not guilty of it,” etc.</p>

<p>Error to Oceana; Russell, J.</p> <p>Sidney Long was convicted of rape.</p>

Exceptions before judgment from St. Clair; Law, J. James Wright was convicted of an assault with intent to do great bodily harm less than the crime of murder.

Bill by James Simmons and others against the board of supervisors of Alcona county and others to restrain the reconstruction of a county building. From an order modifying a preliminary injunction, and from an order denying a motion to set aside such order, complainants appeal.

Bill by David O. Magahay and others against the board of supervisors of Alcona county and others to restrain the reconstruction of a county building. From an order modifying a preliminary injunction, and from an order denying a motion to set aside such order, complainants appeal.

<p>Cancellation of Instruments — Evidence—Sufficiency.</p> <p>On a bill to cancel, for failure of consideration, a deed given in consideration of a life support, evidence examined, and held, that a decree appointing a receiver of the property, and awarding certain sums from the income thereof to complainant for his support, was proper, after some modification in the amount awarded.</p>

<p>Error to Wexford; Chittenden, J.</p> <p>Replevin by Orlow Thompson against Richard New-land. There was judgment for plaintiff, and defendant brings error.</p>

Elmore J. Bean presented for probate the last will and testament of John H. Bean, deceased. The will was allowed in the probate court, and Sinkler C. Bean and others appealed to the circuit court. There was judgment for contestants, and proponent brings error.

Stuart, J. Case by Jans Bakker, administrator of the estate of Stephen Bakker, deceased, against D. Emmett Welsh and Ralph Apted for the negligent killing of plaintiff’s intestate. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

<p>1. Libel and Slander — Publication—Privilege.</p> <p>Where, in an action for slander, there is evidence tending to prove that a report or charge, for which defendant was responsible, came to the knowledge of plaintiff and her husband, in consequence of which plaintiff’s husband, to the knowl. edge of plaintiff, called upon defendant, where, in answer to questions, defendant repeated the accusation, and there is evidence that plaintiff, though she had knowledge of her husband’s purpose to call on defendant, discouraged his going, it cannot be said there is no evidence of publication.</p> <p>3. Same.</p> <p>So of another occasion, when plaintiff’s husband called her to the door as defendant was passing, and had him repeat the charge; the inference arising from the testimony that she procured the interview at most making it a question for the jury whether she was in effect asking defendant, through her husband, if he still believed the charge, and thus rendering defendant’s answer absolutely privileged, if honest.</p> <p>3. Same — Justification — Plea — Necessity — Instructions— '■ Harmless Error.</p> <p>Where, in an action for slander, there is no evidence tending to prove that plaintiff was guilty of the charge made by the slanderous statement, an instruction that, because no plea of justification has been filed, and no claim made that plaintiff is guilty of the charge, a conclusive presumption arises that plaintiff is not guilty, though erroneous, is not prejudicial.</p> <p>4. Appeal and Error — Evidence—Certificate.</p> <p>Where the bill of exceptions is not certified as containing all the evidence, a statement by the trial judge, in overruling a motion for a new trial, that there is no evidence tending to prove a particular fact, will be taken as true, not being dis- ' puted by counsel for appellant.</p> <p>5. Libel and Slander — Qualified Privilege — Malice.</p> <p>Where the only publication of an alleged slanderous statement, declared upon and proved, appears to have been to plaintiff’s husband alone, in response to questions asked defendant by him, the publication was qualifiedly privileged, and is not actionable unless shown to be both false and malicious.</p> <p>6. Same — Evidence—Burden of Proof.</p> <p>In such case the burden is upon plaintiff to prove defendant’s knowledge of the falsity of the charge made.</p> <p>7. Same — Evidence—Malice—Other Publications.</p> <p>Where, in an action for slander, the publication declared upon was made under such circumstances that it was qualifiedly privileged, and defendant is not liable unless the charge was false and he knew it to be false, evidence that he also repeated the charge to others has no tendency to prove his knowledge of its falsity, and is therefore not admissible.</p>

Bill by Floyd D. Miller against James S. Meilstrup and Anna J. Meilstrup to compel a reconveyance of certain real estate, and to quiet title thereto. From a decree dismissing the bill, complainant appeals.

ErrQr to Saginaw; Beach, J. Ejectment by Aaron P. Bliss against Daniel H. Slater and others. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

Case by Amelia Colling, administratrix of the estate of William Colling, deceased, against Charles E. McGregor for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Cross-appeals from Calhoun; Hopkins, J. Bill by Lettie D. Brown against Martin E. Brown for a divorce. From a decree determining the amount of alimony, both parties appeal.

Case by John V. Dolbee against the Detroit, Ypsilanti, Ann Arbor & Jackson Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error., Plaintiff, on August 6, 1904, was a passenger on one of defendant’s cars from Ypsilanti to Ann Arbor. He was sitting on the left-hand side, in the rear seat of the smoking room, next to the window, which was up.

Bill by John Gilluly against Frank W. Shumway for .an accounting and for the cancellation of a mortgage. From a decree granting insufficient relief, complainant appeals. On March 22, 1894, complainant became obligated to ■defendant in the sum of $375 upon two promissory notes. 'To secure this indebtedness he gave a quitclaim deed on his life estate in a farm, which life estate had been bequeathed to him by his father.

Case made from Calhoun; Hopkins, J. Elizabeth Young, administratrix with the will annexed of the estate of Christian Young, deceased, petitioned for the appointment of an administrator de bonis non with the will annexed of said estate. .The petition was granted in the probate court, and Christian Young and others appealed to the circuit court. There was judgment sustaining the order of the probate court, and contestants appeal.

Case by Israel Konkle against John M. Haven and Hattie A. Haven for libel. There was judgment for plaintiff, and defendants bring error.

Petition by Andrew Thompson against John A. Couch for a writ of prohibition to restrain respondent from assuming jurisdiction as a justice of the peace.

<p>Marriage — Suit to Annul — Allowance to Wife — Power of Court — Statutes.</p> <p>Where suit is brought under section 8618, 3 Comp. Laws, to annul a marriage, the court has power to require the husband to pay money to the wife to enable her to carry on the suit, though there is no statutory authority therefor, either in section 8638, 3 Comp. Laws, or elsewhere; the power being incident to the jurisdiction in such cases.</p>

Bill by Diantha M. Cole against Nancy Cole for the restoration of certain deeds. From a decree dismissing the bill, complainant appeals.

<p>1. Venue — Change — Statute — Construction — Successive Changes.</p> <p>A party is not entitled, as a matter of right, to more than one change of venue under Act No. 809, Pub. Acts 1905.</p> <p>3. Same — Additional Grounds — Prejudice oe Judge.</p> <p>Where, in applying for a change of venue under the act of 1905, relator did not set up the ground of prejudice of the judge, though he had knowledge thereof, and the court in granting the application changed the venue to another county in his own circuit, relator is not entitled to another change on the ground of prejudice of the judge.</p>

Mandamus by Frederick Schmid to compel Clyde C. Chittenden, circuit judge of Benzie county, to grant leave to file a supplemental answer to a bill of complaint, and to modify an order setting aside a stipulation.

Mandamus by Frank J. Cosgrove to compel Morse Rohnert, circuit judge of Wayne county, to vacate an order allowing an appeal from a judgment of a justice of the peace.

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

)', J., presiding. Case by Charles H. Walker, administrator of the estate of Minnie M. Walker, deceased, against the Lansing &. Suburban Traction Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Mandamus by the Travelers’ Insurance Company of Hartford to compel Alfred Wolcott, circuit judge of Kent county, to vacate an order extending the time to file a motion for a new trial.

Mandamus by Frank L. Wells to compel James M. Torrey, justice of the peace, to entertain a complaint and issue a warrant. There was an order granting the writ, and respondent brings certiorari.

<p>1. Appeal and Error — Chancery Cases — Settlement of Case —Extension of Time.</p> <p>Whether the time for settlement of a chancery case can be extended under Act No. 129, Pub. Acts 1905, after the statutory forty days have elapsed without steps taken to perfect an appeal, quaere.</p> <p>2. Same — Statute—Application.</p> <p>Act No. 129, Pub. Acts 1905, providing for the settlement of chancery cases on appeal, has no application to a case which is not before the court upon pleadings and proofs, but upon an oral demurrer to' an amended bill.</p>

Case by William A. Warren, by next friend, against Edgar S. Porter and Lucien D. Driggs, copartners as the Lansing Spoke Company, for personal injuries. There was judgment for plaintiff, and defendants bring error.