Volume 145 — Michigan Reports

Bill by the John Duncan Land & Mining Company against Albert H. Rusch to set aside a certain tax notice and the service thereof. From a decree dismissing the bill, complainant appeals.

Case by John H. Hebblethwaite against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Hastings and Mullett streets, in the city of Detroit, cross each other at right angles; Hastings running north and south. Hastings street is 50 feet wide. Mullett, as appears from the plat in the record, is a little narrower. Defendant’s track' runs in the center of Hastings street.

<p>Appeal from Wayne; Brooke, J.</p> <p>Bill by Henry Hoock against Adolpb Sloman and Lottie T. Sloman for the foreclosure of a mortgage. From a decree for complainant, defendants appeal.</p>

Ejectment by Albert A. Griffin against Andrew E. Jackson and another. There was judgment for plaintiff on a verdict directed by the court, and defendant Jackson brings error.

Case by George H. Jarrait against Louis M. Peters for damages, for refusal to give possession under a lease. There was judgment for plaintiff, and defendant brings error.

Clair; Tappan, J. Bill by Barbara C. Murphy against Burt D. Cady, administrator of the estate of Patrick Butler, deceased, and James Butler, for an accounting. From a decree dismissing the bill complainant appeals.

Bill of review by Louisa Pomeroy, Emelia Pomeroy Mackin, individually and as administratrix of the estate of John C. Pomeroy, deceased, and others, against Patrick Noud to set aside a.,decree for foreclosure of a mortgage and for an accounting. From a decree dismissing the bill, complainants appeal.

Assumpsit by Samuel T. Goldberg against Soledad Drake on a contract for the sale of certain land. There was judgment for plaintiff, and defendant brings error.

Petition by Zachariah Hayward against William O’Con-nor, trustee* and James B. Bradley, auditor general, to set aside the sale of land delinquent for taxes. From a decree dismissing the petition, petitioner appeals.

Assumpsit by Willis C. Ward, Franklin B. Ward, and George K. Root, executors and trustees under the last will and testament of David Ward, deceased, against the township of Echo for taxes paid under protest. There was judgment for defendant, and plaintiffs bring error.

<p>Mandamus by Thomas Blain to compel Joseph H. Steere, circuit judge of Chippewa county, to vacate a temporary injunction.</p>

Case by Joseph La Londe against the Trans St. Mary’s Traction Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by the Warren Brothers Company against the Barker Asphalt Paving Company to restrain the use of a trade-name. From a decree dismissing the bill, complainant appeals.

Case by Daniel E. Livingway against the Houghton County Street Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>1. Replevin — Title op Plaintiff — Sufficiency of Evidence.</p> <p>Where, in replevin for timber cut from certain lands, plaintiff shows title to the land by deed and title to the timber by bill of sale, both acquired after the timber was cut, and it appears that the tax title on which defendant relies is void, plaintiff is entitled to verdict.</p> <p>2. Same-Recovery by Plaintiff — Measure of Recovery.</p> <p>Plaintiff, in replevin for timber cut on his land, purposely delayed bringing suit until great value had been added to the timber by defendant in running, driving, towing, and manufacturing, and then, though but about 1-14 of the logs had been actually manufactured, seized the full amount claimed' in manufactured lumber, though his logs were easily accessible in the booms, attempting to excuse his course by claiming defendant requested him to do so and pointed out the lumber piles he was to seize. The testimony merely showed that defendant’s officer pointed out certain piles of lumber in which was mixed some of that cut from the logs claimed by plaintiff, and also pointed out the logs mixed in the booms. The property was returned to defendant, plaintiff failing to give the statutory bond. Held, that plaintiff was entitled to recover only for such part of the lumber seized as was manufactured from his own logs.</p> <p>3. Same — Trial—Instructions.</p> <p>The writ describing no logs, but only certain specified kinds of lumber, etc., an instruction that plaintiff was entitled to just the verdict he would have had had he seized his just proportion of sawed and unsawed lumber was inapplicable, could only have confused the jury, and was erroneous.</p> <p>4. Same — Damages—Good Faith of Dependant — Evidence.</p> <p>As bearing on defendant’s good faith as affecting the measure of damages, defendant should have been allowed to show; that the tax title on which it relied was the only record title to the land, and that it purchased this without knowledge of plaintiff’s claim.</p> <p>5. Same —Extent op Recovery — Failure to Give Bond —Increase op Value by Dependant.</p> <p>Where plaintiff in replevin stands by without disclosing his claim to the property, and permits defendant to add great, value to it, and then brings suit without any intention of taking the property, and allows it to be returned to defendant in default of the bond provided by section 10658, 3 Gomp. Laws, as amended (§ 11, Act No. 246, Pub. Acts 1899), and demands judgment for the value of the property under section 10680, as amended (§ 34 Id.), he is entitled to the value of the property actually seized under the writ, at the place where seized, less the increase of value after conversion added by defendant’s labor or expense to the time of commencement of suit.</p>

Bill by Harry O. Phillips against Abraham Jacobs, the East Side Electric Company, and Julius P. Rosenthal, for an accounting. From a decree sustaining a demurrer to the bill, complainant appeals.

Ejectment by Ira Scott and William O’Connor against James J. Baird. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error. This is an action of ejectment to recover a strip of land 6 inches wide and 157 feet long from the south side of the north half of lot 4, block 83, of the city of Lansing.

Information by the people of the State of Michigan, on the relation of Charles A. Blair, attorney general, against the Michigan Central Railroad Company for an accounting. From an order overruling a demurrer to the information, defendant appeals.

Case made from Antrim; Mayne, J. Assumpsit by James B. Swing, trustee, for tbe creditors 'and policy holders of the Union Mutual Fire-Insurance Company of Cincinnati, Ohio (dissolved), against Archibald Cameron, James Cameron, and John Cameron, co-partners as Cameron Brothers, for an assessment. There was judgment for defendants, and plaintiff appeals.

Case by Michael Schremms, Jr., administrator of the estate of Michael Schremms, deceased, against the Pere Marquette Railroad Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

, presiding. Case by Albert T. Getchell against George A. Dusenbury, Albert W. Bahlke, and others, for fraud. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

<p>1. Boundaries — Highways—Agreement or Parties.</p> <p>Where the owners of lands adjacent to a highway have acquiesced for many years in a change in the highway lines, have located the lines of buildings with reference to such change, and the last grantor of a lot has conveyed to another with an oral declaration recognizing such new boundary, the description in such conveyance, as against subsequent grantees, must be construed with regard to such boundary.</p> <p>2. Same — Evidence—Declarations or Grantor — Admissibility.</p> <p>Declarations of a grantor contemporaneous with the making of a deed, and made for the purpose of settling the boundary of the land conveyed, are admissible in evidence as against the grantor and those claiming under him.</p> <p>8. Same — Highways—Change of Boundaries — Agreement of Parties — Effect—Question for Jury.</p> <p>Where lot owners, by building back from the line of a street, as shown on the plat, and occupying the space by sidewalk, apparently widen the street to that extent, the question whether the land conveyed by a deed of a certain number of feet of the lot should include or exclude the strip apparently abandoned to the street is for the jury, though there is no evidence of acceptance of the strip by the public authorities.</p> <p>4. Evidence — Parol Evidence Varying Writings — Deeds.</p> <p>Where the description in a deed calls for a certain number of feet in the depth of a lot, and not for a particular fraction of the lot, testimony that shows that the street in front of the lot is wider than the plat indicates, and that the grantee’s land extends a corresponding distance farther from the street, does not vary the description in the deed by parol, but simply locates the boundaries of the land upon the ground.</p> <p>5. Same — Declarations—Grantors—Grantee’s Title.</p> <p>Declarations of a grantor with respect to his grantee’s title, made after the execution of the deed, and after the grantor had parted with his entire interest in the premises, are inadmissible.</p> <p>6. Ejectment — Evidence—Issues—Scope.</p> <p>Testimony showing the feeble condition of plaintiff’s grantor at the time of executing the deed on which plaintiff relies, and other circumstances tending to impeach the fairness of plaintiff’s methods in procuring the deed, are not admissible in ejectment, but can only be considered in some equitable proceeding to vacate or reform the deed.</p> <p>7. Witnesses — Competency—Transactions With Person Since Deceased.</p> <p>Where plaintiff and defendant in ejectment both claim under the same grantor, who is dead, the dispute being as to the location of the boundary between their respective holdings, defendant cannot testify as to the grantor’s acts and conversation at the time of measuring off his land. (Section 10212, 3 Comp. Laws.)</p>

Bill by William J. Micks against Charles D. Mason, mayor, and Neis J. Gormsen and others, members of the common council of the city of Gladstone, to restrain the destruction of a building erected in violation of an ordinance establishing fire limits. From a decree for complainant, defendants appeal.

<p>Error to Calhoun; Hopkins, J.</p> <p>Trover by J. Dwight Dorris against Morton D. .Rice. There was judgment for plaintiff, and defendant brings error.</p>

Case made from Oakland; Smith, J. Ejectment by Clara Putney against Henry Vimon and others. There was judgment for defendants on a verdict directed by the court, and plaintiff appeals.

Case by Mary Ladd against Edward Germain for personal injuries. There was judgment for plaintiff, and defendant -brings error.

Assumpsit by the Pittsburgh & Ohio Mining Company against Walter J. Scully for goods sold and delivered. There was judgment for defendant, and plaintiff brings error.

Assumpsit by the Tri-State Milling Company against Christian Breisch and Robert W. Langenbacher, copartners as Christian Breisch & Company, for breach of a contract for the sale of flour. There was judgment for plaintiff, and defendants bring error. Plaintiff sued defendants to recover damages for breach of contract for the sale of four carloads (800 barrels) of flour.

Bill by James D. Kennedy against the State board of registration in medicine to enjoin the revocation of complainant’s certificate of registration as a physician and surgeon. From a decree dismissing the bill, complainant appeals.

<p>1. Equity — Chancery Practice — Special Appearance — Rights Conferred.</p> <p>A special appearance does not entitle defendant “to notice of all further proceedings in the cause,” under Chancery Rule 5, and default may be entered and decree pro confesso taken against him without notice, notwithstanding a special appearance.</p> <p>2. Judgment — Default Decree — Opening Default — Effect of Order. -</p> <p>Pending a motion by defendant, appearing specially, attacking the .-jurisdiction of the court, his default was entered and decree pro confesso taken against him, and subsequently his motion was overruled and an order entered giving him five days in which to appear generally, should he choose to do so, in which case the decree should be set aside. Held, that the effect of the order, so long as it remained in force, was, upon a compliance with its terms being shown, to open the default and vacate the decree.</p> <p>3. Same — Amendment of Order.</p> <p>By making an order opening a default and vacating a decree on terms, the court does not exhaust its authority over the subject, but may modify the order thereafter as equity requires.</p> <p>4. Same — Time to Move.</p> <p>A claim that an order modifying an order opening a default on terms is unauthorized, because the motion upon which it is based was not made or entered at the same term as the modified order, is not founded in fact, where it appears that, though the motion papers were apparently filed the second day of the term, they were served several days before, and, the matter being before the court, it was continued by consent to the second day of the term, without which continuance the party would have been in default under the unmodified order.</p> <p>5. Equity — Consent Orders — Modification.</p> <p>Even a consent order may be modified or vacated where it' does not express the real intent of the parties, and this though the mistake be unilateral.</p> <p>6. Judgment — Order Opening Default — Modification — Propriety.</p> <p>Where, on the -understanding that defendant desired to contest the cause on its merits, his default was set aside in case he desired to appear generally in the case, and he was allowed time to plead, and pending such time he procured a decree in another State pro confesso and attempted to plead it in bar of the suit in this State, the order opening the default was properly modified so as to be conditional on his having the foreign decree set aside and the suit there discontinued.</p> <p>f. Appeal — Record—Silence—Statements of Trial Court.</p> <p>In the absence of an official record showing all that transpired upon the argument of a motion, this court must accept the statement of the trial court, notwithstanding it is denied by counsel.</p> <p>8. Same — Questions Considered — Objections not Made Below.</p> <p>An objection that an order modifying an order opening a default on terms was not authorized because not based on affidavit is untenable where such objection was not made below, and it appears that the facts upon which the order was founded were all before the court at the time of making a consent order continuing the hearing on the motion, and were laid before the court by counsel for the objector a week before the order was made.</p>

Bill by the trustees of Hillsdale College against Clark O. Wood, executor of the last will and testament of Jesse C. Ferris, deceased, and others, to obtain a construction of said will. From a decree dismissing the bill, complainants appeal.

Case by Ida G. Lorf against the city of Detroit for personal injuries. There was judgment for plaintiff for an insufficient amount, and she brings error.

<p>Appeal from Kalamazoo; Adams, J.</p> <p>Bill by Richmond S. Russell against Anna Phillips and Sarah A. Hutchinson for an accounting. From a decree dismissing the bill, complainant appeals.</p>

Assumpsit by Clara Sawyer against the village of Mantón for services rendered in caring for persons sick with a contagious disease. There was judgment for plaintiff, and defendant brings error.

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Caroline Hewelt against John F. Hewelt for a divorce. From a decree for complainant, defendant appeals.</p>

Case by Bertha J. Salzwedel, administratrix of the estate of Fritz Carl Salzwedel, deceased, against the city of Adrian for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Albert J. Ayers against Ernest Hinkle for breach oj: contract of sale. There was judgment for plaintiff, and defendant brings error.

Herman Boldt and Ernest Boldt were convicted of violating an ordinance, and sentenced to pay a fine of $100 or in default thereof to 10 days’ imprisonment in the county jail.

Bill by the Saginaw Lumber & Salt Company against Andrew Griffore to enjoin a trespass upon lands. There was an order adjudging defendant guilty of contempt, and he brings certiorari.

<p>1. Divorce — Pleading—Condonation Pending Trial — Practice.</p> <p>Where a condonation occurs after filing a bill for divorce, proper practice requires that either complainant or defendant shall bring upon the record the precise nature of the issues to be tried, and where it appears to the trial court that this has not been done, hearing upon the merits, if it has been entered upon, should be deferred until the pleadings are properly amended. •</p> <p>2. Same — Duty of Amending.</p> <p>Where defendant in divorce relies upon a condonation occurring after issue joined, it is his duty to bring it before the court by amendment to his answer; and where he fails to amend, and contents himself with objecting to proceeding with the hearing, supporting his objection by an affidavit setting up the condonation, and complainant claims that the condonation is ineffective for failure of defendant to perform its conditions, complainant is in no position to complain that the cause proceeded to decree without proper pleadings.</p> <p>3. Same — Condonation — Nonperformance of Condition — Effect.</p> <p>Where complainant in divorce condoned the offense relied on after issue joined, but was informed and believed that her rights would not be endangered by so doing, and defendant failed to perform the conditions of the condonation, such condonation was ineffective to avoid the jurisdiction of the court. s</p> <p>4. Same — Decree—Defective Pleadings — Effect.</p> <p>A decree of divorce, and the arrangement for the custody of the children of the marriage, will not be disturbed for failure to so amend the pleadings as to show a condonation after issue joined and its ineffectiveness for breach of its conditions, where it appears that defendant had the benefit of his affidavit setting up the facts, and there is evidence to meet the actual case.</p> <p>5. Same — Alimony—Award in Gross — Evidence—Necessity. Where* alimony is awarded in .gross, it is especially important that all facts material in determining a just award should be before the court.</p>

<p>Divorce — Grounds—Recrimination.</p> <p>Where it appears that a woman, applying for divorce on the grounds of extreme cruelty, has been guilty of marital infidelity, she will be denied relief, though defendant lived with her after he believed, with good reason, that he had been wronged.</p>

Ejectment by Charles D. Olmstead against Francis C. Tracy and others. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Bill by Marshall H. Starr and others against Thomas 'Book Shepard and others to restrain the removal of certain property. From a decree for complainants, defendant Shepard appeals.

Assumpsit by John E. Letherer against the United States Health & Accident Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Assumpsit by John F. Letherer against the Phoenix Accident & Sick Benefit Association on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Submitted Case by Netiva Cousineau, by next friend, against theMuskegon Traction & Lighting Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case by the Adrian Knitting Company against the Wabash Railway Company for the misdelivery of certain goods. There was judgment for plaintiff, and defendant brings error. February 1, 1903, Charles C. Pierce and Orville E. . Fox made an agreement for a copartnership to engage in manufacturing shoes at Adrian, Mich.

Bill by Martin Manthey and others against Alonzo Vincent, warden, the board of control of the Michigan State prison, and the Illinois Broom Company, to enjoin the performance of a contract for the manufacture of brooms. From a decree for complainants, defendants appeal.

Mandamus by H. Clair Jackson, prosecuting attorney, to compel Lynn B. Mason, judge of the recorder’s court of the city of Kalamazoo, to issue a warrant for the violation of Act No. 200, Pub. Acts 1905. There was an order denying the writ, and relator brings certiorari.

Mandamus by Ed. Young to compel L. Burget Des Voignes, circuit judge of Van Burén county, to frame an issue in a proceeding to compel the approval of a druggist’s bond.

, presiding. Bill by Theodore Barron against Addie E. Myers and Merlin A. Myers to set aside a deed. From a decree for complainant, defendants appeal: On motion for the appointment of a receiver pending the appeal.

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

Bill by John Koch and Christian Koch, copartners as Koch Brothers, against May B. Sumner, and others, to enforce a mechanics’ lien. Defendant Sumner filed an answer in the nature of a cross-bill asking for an accounting. From an order overruling a demurrer to the cross-bill, complainants appeal.

Case by John D. Allen against Jacob Bainbridge for damages done by fire. There was .judgment for plaintiff for double the amount of damages under section 11653, 3 Comp. Laws, and defendant brings error.

Ejectment by Annie S. Lang, John Abner Sherman, and Rosa Sherman against the Osceola Consolidated Mining Company. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.

Assumpsit by Francis Jiroch against the Travelers’ Insurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Bill by David McG-aw against Edwin J. Manning and Eliza Manning to restrain trespass upon land. From a decree for complainant, defendants appeal. The dispute in this case arises over the title to a strip of land about six feet in width. Complainant is the owner of lots 14 and 15 of College addition to the village (now city) of Kalamazoo. The defendant Edwin J. Manning is the owner of the adjoining lots 12 and 13. .

Assumpsit by Edgar A. Maher against William P. McKnight, James T. McAllister, and John J. Tweddle for services rendered. There was judgment for defendants, and plaintiff brings error.

Assumpsit by Alice Carey and Ella Carey, copartners as Carey Sisters, against William F. Nissle and others on a promissory note. There was judgment for defendants, and plaintiffs bring error. This is a suit upon a promissory note of 1233.33, of which the defendants were makers and W. P. Stimmel and L. Harris, under the name of Stimmel & Harris, were payees, and indorsed by them to the plaintiffs without recourse.

Assumpsit by M. C. Hubbard, M. J. Merwin, and C. K. Farmer, copartners as Hubbard, Merwin & Farmer, against Edward T. Leiter for commissions on the sale of real estate. There was judgment for plaintiffs, and defendant brings error.

Bill by Emma Coston against Catherine Coston and the Knights of the Modern Maccabees to determine the title to a policy of insurance. Prom a decree for complainant, defendants appeal.

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

<p>Error to Cass; Carr, J.</p> <p>John W. Bronner and Jacob Herold were convicted of violating the liquor law, and each sentenced to pay a fine of $100.</p>

Floyd S. Harper was convicted of murder in the first degree,. and sentenced to imprisonment for life in the State prison at Jackson.

<p>Case made from Ottawa; Padgham, J.</p> <p>Replevin by Arthur Feenstra and Jane Feenstra against Edward Tanis. There was judgment for plaintiffs, and defendant appeals.</p>

Mandamus by William B. Brown, prosecuting attorney of Kent county, to compel William J. Stuart, judge of the superior court of Grand Rapids, to reinstate a prosecution for the violation of Act No. 214, Pub. Acts 1905.

Mandamus by John E. Bird, attorney general, on the relation of Charles S. Beadle, to compel John E. Arnott, city assessor, and the board of review of the city of Sault: Ste. Marie, to place certain corporate property upon the-tax roll. There was an order denying the writ, and relator brings certiorari.

Case made from Ionia; Davis, J. Assumpsit by John Nichol, receiver of the Citizens’ Mutual Fire-Insurance Company of Jackson, Michigan, against Edwin A. Murphy for an assessment in winding up the affairs of said company. There was judgment for plaintiff, and defendant appeals.

Bill by Austin E. Lawrence against George B. Kirby, highway commissioner, to enjoin a trespass, and to quiet title. From a decree for complainant, defendant appeals.

Garnishment proceedings by Robert King against James Harrigan as garnishee of Richard Burden. There was judgment for plaintiff, and the garnishee brings error.

Assumpsit by Erastus J. Horton against Frederick Immen for a commission on the sale of real estate. There was judgment for defendant, and plaintiff brings error.. Plaintiff is a real estate broker and seeks to recover a commission upon a contract by which he claims that he was to furnish a purchaser for the defendant’s land, a block in the city of Grand Rapids.

Exceptions before judgment from Houghton; Streeter, J. Gilbert Ritchie was convicted of embezzlement under section 11572, 3 Comp. Laws. Respondent was convicted of a violation of section 11572, 3 Comp.

Wiley H. Tollefson was convicted of forgery, and sentenced to imprisonment for not less than five years in the branch of the State prison at Marquette.

<p>1. State Senate — Senatorial Districts — Apportionment—Constitutional Provisions — County as Unit.</p> <p>The provision of section 2, article 4, of the Constitution, that “ no county shall be divided in the formation of senate districts, except such county shall be equitably entitled to two or more senators,” indicates, not that the county is made the basis of apportionment, but that portions of different counties must not be included in the same district, and that when a county is' entitled to two or more senators the obligation is upon the legislature to make such apportionment within the county according to population upon the basis of the last enumeration of the State.</p> <p>:2. Same — Duty of Apportionment — Where Vested — Supreme Court — Jurisdiction.</p> <p>The duty of dividing the State and the counties thereof into senatorial' districts is reposed by the Constitution in the legislature and the court only assumes to determine whether in a given case the legislature has exercised a constitutional discretion.</p> <p>3. Same — Validity oe Apportionment — Inequality.</p> <p>A senatorial apportionment act, according to which certain districts have more than double the population of others, cannot be sustained.</p> <p>4. Same — Apportionment Aot — Duration.</p> <p>Each apportionment act remains in force until it is supplanted. by a subsequent valid act. Ostrander, J., dissenting.</p> <p>5. Same — Invalidity oe Subsequent Aot — Eeeeot.</p> <p>Where the last senatorial apportionment act is invalid because of disparity in the population of the districts, and the same objection exists as to previous acts, the “election must be called according to the last act which was valid when enacted, notwithstanding changes in the population have produced equal if not greater inequalities than those in the acts held invalid. Ostrander, J., dissenting.</p>

), J. Quo warranto proceedings by Frank A. Bockwith, prosecuting attorney, on the relation of Joseph W. Kerns and others, against the State Boad Bridge Company and others to test the right of said company to maintain, its franchise and privilege of collecting tolls on its bridge over the Tittabawassee river. From a decree for complainant, defendants appeal.

Bill by Levi L. Barbour against John C. Patterson to remove a cloud from the title to land. From a decree for complainant, defendant appeals.

Case by Arabella A. Miller against the village of Birmingham for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>Equity —Jurisdiction — Adequate Remedy at Law — Fire Insurance Policy — Mistake.</p> <p>A bill by the insured in a fire-insurance policy setting up that in consequence of his imperfect understanding of English he gave the wrong answer to the question of the insurer’s agent with respect to incumbrances upon the property, that the company refuses to pay a loss upon the policy because of said misrepresentation, that the incumbrance in nowise contributed to the loss, and praying that the loss may be determined and decreed to complainant, states a contract of insurance enforceable in an action at law and states no case for the equity side of the court.</p>

Assumpsit by the Long-Bell Lumber Company against R. C. Nyman for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by William A. Throop against Frank P. Russell on certain promissory notes. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

George W. Parker was convicted of manslaughter, and sentenced to imprisonment for not less than nine, and not more than ten, years in the State prison at Jackson. The respondent, under an information charging murder, was convicted of manslaughter. A jury was duly impaneled, accepted, sworn, and placed in charge of officers of the court, March 16, 1904, and the case adjourned to the following day. The trial was again adjourned to the 18th.

Assumpsit by William H. Proctor against the Hobart M. Cable Company for breach of a contract of employment. There was judgment for plaintiff, and defendant brings error.

Case by Belle H. Wilson, administratrix of the estate of William Earl Bryant, deceased, against the Lake Shore & Michigan Southern Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Clair; Tappan, J. Assumpsit by John G. O’Neill and others against the Northern Assurance Company of London, England, on a policy of insurance. There was judgment for plaintiffs on a verdict directed by the court, and defendant brings error.

Arthur Murphy was convicted of an assault with intent to commit the crime of rape, and sentenced to imprisonment for not less than two and one-half, and not more than ten, years in the State house of correction and reformatory at Ionia.

<p>1. Intoxicating Liquors — Information—Screens—Language of Statute.</p> <p>An information under the liquor law (section '5409, 2 Oomp. Laws) for failure to remove screens, etc., on Sunday, is sufficient where it follows the language of the statute, though in so doing it charges respondent with committing all the offenses enumerated in the section, and contains no specific allegations of the kind and nature of the obstructions complained of.</p> <p>2. Same — Instructions—Requests—Propriety.</p> <p>In a prosecution for failing to remove screens, etc., from respondent’s saloon on Sunday, in violation of section 5409, 2 Comp. Laws, requests embodying respondent’s theory of what must be shown to authorize conviction, examined in connection with the charge as given, and held, that the subject oí the request was sufficiently covered by the general charge.</p> <p>3. Criminal Law — Instructions—Duty of Jury.</p> <p>Where counsel for respondent tells the jury that they are not bound by the law and the evidence, but have the right to render such a verdict as their consciences dictate, it is proper for the court to charge that they are bound to follow the instructions given them upon the law, and that if they render a verdict in defiance of the law and the evidence in the case they will be subject to a prosecution for perjury.</p>

Assumpsit by Elias W. Cone against the American Electric Fuse Company and Frank G. Jones for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.

Case by Henry Moerman against the Clark-RutkaWeaver Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Jennie M. Braman against Kate S. Stewart for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by the Wolverine Lumber Company, Limited, against the Phoenix Insurance Company of Brooklyn on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Bill by Margaret Leonard against Frederick Leonard and Lizzie Leonard to set aside a deed and to remove a cloud from the title do land. From a decree dismissing the bill, complainant appeals.

, presiding. Bills by George N. Hatch against James L. Daugherty and others to restrain the foreclosure of a mortgage, and against John C. Sharp, administrator of the estate of James C. Deyo, deceased, and others, to foreclose a second mortgage; also by James L. Daugherty against said John C. Sharp and others to foreclose said first mortgage. The cases were heard as one, and from the decree rendered, said Daugherty appeals.

, presiding. Bill by Richard M. Bates and Frank R. Pancoast against the city of Hastings and others to enjoin the illegal expenditure of public funds. From an order overruling a demurrer to the bill, defendants appeal.

Case by Mary Johnson, by next friend, against Edward Johnson, a saloon keeper, and his bondsmen, under the-civil-damage act. There was judgment for defendants,, and plaintiff brings error.

Assumpsit by Louis E. Lyon and Milbert E. Price, copartners as the Lyon-Taylor Company, against Peter J. Lindblad for goods sold and delivered. There was judgment for plaintiffs for less than the amount claimed, and they bring error.

<p>1. Pledges — Conditional Sales — Character of Transaction —Question for Jury.</p> <p>In an action by an indorser against the maker on a promissory note, evidence examined, and held,-that whether a transfer of stock from defendant to plaintiff at the time of indorsing the note was a conditional sale thereof, or a pledge to secure payment of the note, was a question for the jury.</p> <p>2. Justices of the Peace — Pleadings — Notice of Special Defense.</p> <p>A notice of special defense, filed with the plea in justice’s court, which contains, in substance, á statement of the facts upon which defendant relies in circuit court, is properly held sufficient in circuit court, irrespective whether it conforms strictly to the rules of pleading.</p> <p>3. Trial — Instructions—Bequests.</p> <p>It is not error to refuse requested instructions which are either covered or obviated by the general charge.</p> <p>4. Principal and Surety — Agreements Inter Se — Instructions.</p> <p>Where, in an action by the indorser against the maker on a promissory note, the defendant claims to have transferred stock to plaintiff in payment of the obligation, and that plaintiff agreed if he sold the stock to pay defendant the excess received over the amount of the note, it is error to charge that, if plaintiff failed, through negligence, to realize on the stock, he cannot recover.</p> <p>5. Evidence — Admissibility—Character qf Parties.</p> <p>In an action on a promissory note it is improper to receive evidence of other alleged fraudulent dealings on the part of plaintiff not connected with the transaction in issue. ’</p>

Assumpsit by Charles Mestler against Roberson Jeffries to recover payments made on a contract for the sale of land rescinded on the ground of fraud. There was judgment for plaintiff, and defendant brings error.

Samuel R. Bateson presented a claim against the estate of Ralph Phelps, deceased, for taxes paid by mistake on property of the decedent. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. There was judgment for the estate on a verdict directed by the court, and claimant brings error.

Bill by Lawrence Flynn against Andrew J. Holmes to remove a cloud from the title to land. Defendant filed an answer in the nature of a cross-bill asking for a writ of assistance. Complainant demurred to the cross-bill and filed a plea. From an order overruling the demurrer and plea, complainant appeals.

Assumpsit by Samuel Juntilla against the Calumet & Hecla Mining Company for goods sold and delivered. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by the Harrison Wagon Company against Fred Brown for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.

Bill by Gustave Kamin and another against Charles Kamin and others to set aside a deed. From a decree dismissing the bill, complainants appeal.

<p>Carriers — Street Railroads — Taking up Passengers — Care Required.</p> <p>In an action against a street-railroad, company for injuries to a passenger by starting the car while she was attempting to board it, following another passenger for whom the car had been stopped, an instruction that assumes that the conductor, when he started the car, was not bound to use any care to determine whether he would thereby endanger the safety of persons intending to become passengers, is properly refused.</p>

Case by William N. Hoyt against Edward Garlock for injuries to plaintiff’s horse. There was judgment for plaintiff, and defendant brings error.

Assumpsit by James A. Geraghty against the Washtenaw Mutual Fire-Insurance Company on a policy of insurance. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Affirmed. The defendant is organized under the provisions of chapter 195, 2 Comp. Laws, for the purpose of mutual insurance of the property of its members against loss by fire or damage by lightning.

Case by Jeremiah Nichols against the Pere Marquette Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error. A water tank belonging to defendant company, located at Fowlerville, was reached by a vertical ladder about 35 feet long, leading from the ground, fastened to the tank. There was a steam pumping station connected with the tank, and on the tank an indicator designed to show the depth of the water therein.

<p>Appeal from St. Clair; Law, J.</p> <p>Bill by Sheldon A. Wood against Eugene J. School-craft and William L. Jenks for an accounting. From a decree for complainant, defendant Jenks appeals.</p>

The Detroit National Bank filed its claim with the Union Trust Company, receiver of the City Savings Bank, on certain certified checks, and on disallowance of its claim filed its petition to intervene. An issue was framed and tried on the law side of the court, resulting in judgment for the receiver, and claimant brings error. Reversed.

Assumpsit by the Thiel Detective Service Company against Amy R. Seavey for work and labor. There was judgment for defendant, and plaintiff brings error.

Bill by Helen Champion against the Grand Rapids, Grand Haven & Muskegon Railway Company to enjoin the construction of a road on complainant’s premises. Defendant filed an answer in the nature of a cross-bill praying for reformation of a deed. From a decree dismissing the bill and granting the prayer of the cross-bill, complainant appeals.

Ejectment by Henry Turner and another against James A. Angus and another. There was judgment for plaintiffs on a verdict directed by the court, and defendants bring error.

Assumpsit by Maria Monger against the New Era Association on a benefit certificate. There was judgment for plaintiff, and defendant brings error.

<p>1. Principal and Agent — Accounting—Closed Transactions.</p> <p>Where differences arising between a manufacturer and his agent are closed and settled at the time the agent enters into contract relations with the incorporated successor of the manufacturer, such differences cannot be made the basis of a claim against either the manufacturer or the corporation in a bill subsequently filed for an accounting.</p> <p>2. Same — Corporations — Transfer of Interest by Principal.</p> <p>Where the business of a manufacturer having an agent is merged into a corporation, and the agent continues dealing with it and its successor, the manufacturer is not a proper party to a bill for an accounting by the agent calling in question the transactions with the corporations.</p> <p>3. Same — Contract—Settlement of Differences.</p> <p>Where existing differences between principal and agent are settled at the time of entering into a new contract, such dif- . ferences cannot be subsequently called in question.</p> <p>á. Same — Contract—Exclusive Representation — Construction.</p> <p>A contract between a manufacturer and its foreign agent examined, and held, to contemplate that the agent should be the exclusive foreign representative of the principal, and that it should make its sales through him.</p> <p>5. Same — Expiration of Contract — Notice.</p> <p>A contract of agency for the term of three years and from year to year thereafter until terminated by six months’ written notice, examined in connection with the notices given, and held, to have terminated on the first anniversary of its making after notice given more than six months prior thereto, and not before.</p> <p>6. Corporations — Contracts Before Organization — Liability.</p> <p>Where a manufacturing corporation having a selling agent reorganized in the form of a limited partnership association, and thereafter did business with the agent in accordance with the terms of his contract with the corporation, the association is not liable to the agent for any breach of the contract committed by the corporation, nor is the corporation liable for breaches by the association.</p> <p>7. Principal and Agent — Contract—Construction.</p> <p>A contract appointing a selling agent, and providing that the principal shall not advertise in European papers without including the agent’s name and address as sole European agent, does not prevent the principal from advertising in American papers printed in this country without including the agent’s name.</p>

Assumpsit by Julius Kessler & Company against Henry J. Zacharias on a promissory note. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Joseph; Yaple, J. Bill by the First State Savings Bank of Three Rivers against Fred J. McMurtrie, John H. McMurtrie and the city of Three Rivers to foreclose a lien upon certain certificates of stock. Defendants filed separate cross-bills praying for an accounting. From a decree for defendant Mc-Murtrie, defendant city appeals.

Case by William H. Bird against the Michigan Central Railroad Company for the negligent killing of certain stock. There was judgment for plaintiff, and defendant brings error.

Margaret J. McLeod and Hugh N. McDonald presented their final account as executors of the last will and testament of Norman McLeod, deceased. The account was allowed in the probate court, and Henry Shouldice, a judgment creditor, appealed to the circuit court. There was judgment affirming the order of the probate court, and claimant brings error.

Bill by Mary Ackerman against Frank Pfent to enjoin defendant from proceeding as administrator of the estate of Jacob Ackerman, deceased. From a decree dismissing the bill, complainant appeals. Defendant obtained a judgment against Jacob Ackerman in February, 1903, and on the 17th of November, 1903, filed a transcript in the circuit court, and caused an execution to be issued and a levy made upon 20 acres of land occupied by Ackerman and his family as a homestead.

Case by the Harrison Granite Company against the Pennsylvania Railroad Company for wrongful interference with plaintiff’s contract rights. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Garnishment proceedings by Howard W. Spurr and others against Henry Swift and Frank G. Rice, as garnishees of Dayton A. Travis and May Travis. There was judgment for plaintiffs, and the garnishees bring error.

<p>1. Divorce — Alimony — Determination of Allowance — Matters Considered.</p> <p>In determining the allowance to a wife, on granting her a divorce, the value of the homestead will be taken into consideration though the title stands in the name of the parties as tenants in the entirety, where the title once stood in the husband and was conveyed upon no consideration except the discontinuance of a prior divorce suit.</p> <p>2. Same — Propriety of Award.</p> <p>Where a husband, against whom a decree for divorce is granted, is shown tobe possessed of an estate of the value of $7,553, including a homestead of the value of $1,200, is 53 years of age and physically unable to perform manual labor, though able to earn some income in other service, and the wife is 47 and able to do something toward her own support, an award of alimony to her consisting of the household goods, the homestead, $2,000 in money, and $25 per month until the older of the two children shall reach the age of 17 years, and $12.50 per month until the younger child shall reach the age of 16 years) is excessive, and the money payment should be reduced to $1,000 cash, and $8 per month for the use of each child until they shall, respectively, reach the age of 16 years</p>