Volume 147 — Michigan Reports

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

<p>Mandamüs — Propriety—Tax Sale-Compelling Refund — Limitations.</p> <p>Mandamus will not lie to compel the auditor general to refund money paid for a void tax title where the petitioner might have demanded repayment more than 14 years before suit was brought.</p>

Mandamus by Henry Carney to compel John B. Whelan and Charles Nichols, commissioner and secretary of police, to credit relator upon the pay rolls of the department with a sum deducted from his salary by reason of absence from duty with leave. There was an order granting the writ, and respondents bring certiorari.

Case by Joseph Bishop against Cyrus W. Baldwin and the Peninsula Bark & Lumber Company for damages to plaintiff’s fishing nets. There was judgment for plaintiff, and defendants bring error. On July 27, 1905, and for some time previous thereto, plaintiff had two pound nets set in the waters off shore in Bay Mills township, Chippewa county. The river or bay at this point is about four miles wide. The channel bank begins at 22 feet of water. The current is southeast.

Bill by John A. Freed against Frank A. Stuart, George W. Robinson and others to restrain the obstruction of a drain. Defendants Stuart and Robinson filed answers in the nature of cross-bills to enjoin complainant from deepening and widening said drain. From a decree for complainant, said defendants appeal.

Bill by Frederick B. Raymond, Melville E. Sayles, and Minerva Sayles, copartners as the Raymond & Sayles Furniture Company, and others, against James McKenna and others to enjoin the performance of a contract on the ground of fraud. From a decree for complainants, defendants appeal.

Assumpsit by J. Lyman Reade, George R. Cowles, and Charles W. Robinson, copartners as J. L. Reade & Company, against Harry K. Haak for commissions on the sale of certain real and personal property. There was judgment for plaintiffs, and defendant brings error.

Case by Joseph Stewart against the Grand Rapids & Indiana Railroad Company for the killing of certain cattle. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit in justice’s court by Charles W. Pickell and Edmond L.. Pickell, copartners as C. W. Pickell & Brother, against Jesse K. Coates upon certain promissory notes. There was judgment for defendant, and from an order denying a special appeal, plaintiffs bring error.

Bill by Charles H. Blackford against Kitty Olmstead and others to re-establish a deed, and for other relief. From a decree for complainant, defendants appeal.

Bill by George W. Bartlett and Joseph L. Drake against the Austin & Western Company, Limited, and others, to set aside a contract on the ground of fraud, and to enjoin the collection of a tax. From á decree for complainants, defendant Austin & Western Company appeals.

, presiding. Certiorari by Stephen A. Bogue against Harmon De Long, highway commissioner, and the township board of Penn township, to review proceedings for establishing a highway. There was judgment for defendants, and plaintiff brings error.

Case by William D. McQuisten, administrator of the estate of Peter Trudell, deceased, against the Detroit Citizens’ Street-Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant, notwithstanding a verdict for plaintiff, and he brings error.

<p>Venue — Change—Time to Move — Statute—Court Rule. „</p> <p>Where a suit was in judgment at the time Act No. 309, Pub. Acts 1905, took effect, and was pending in the Supreme Court when Circuit Court Rule 58 was adopted, the rule had no application, and a motion for a change of venue under the statute made promptly on reversal and remand for a new trial was in time and should have been granted.</p>

Assumpsit by the First National Bank of Detroit against Cameron Currie and Frederick S. Osborne, copartners as Cameron Currie & Company, for money had and received. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.

<p>1. Criminal Law —Second Jeopardy — New Trial'After Reversal.</p> <p>The rule that a conviction of one of the offenses charged in an information operates as an acquittal of the others, so as to bar a trial for them after reversal, should be confined in its operation to cases where the principal offense charged includes within it lower grades of crime, and should not be extended to cases in which the same offense is charged in different ways in several counts. Hooker and Montgomery, JJ., dissenting.</p> <p>2. Indictment and Information — Several Counts — Eleotion.</p> <p>Where respondent’s counsel raise no question of the right of the people to try respondent upon both counts of the information until after the proofs are closed, the court is not limited to the face of the information in determining whether the two counts charge the same offense, but may interpret the information in the light of the evidence before the court when the question is presented.</p> <p>3. Same — Identity of Offenses.</p> <p>Respondent obtained money from the prosecuting witness to be used in buying State tax lands and sent it to the auditor general, who, being unable to comply with the application, returned the money to respondent in the form of a draft of the State treasurer payable to respondent’s order Respondent cashed the draft and converted the money to his own use. Held, that counts charging (1) that respondent embezzled the money, and (2) that he embezzled the draft thereby committing larceny, both based upon section 11570, 3 Comp. Laws, charged the same offense.</p> <p>A Criminal Law — Appeal—Questions Review able — Scope of Objection Below.</p> <p>Where the objection below to allowing the stenographer to read the testimony of a deceased witness went to the competency of the testimony itself regardless of authentication, the objection that the prosecution failed to make preliminary proof of the accuracy of the stenographer’s minutes, first raised in this, court, will not be considered.</p> <p>5. Same — Evidence—Harmless Error.</p> <p>Where respondent’s counsel made his opening statement to the jury before the people’s evidencie was offered, and admitted receipt by respondent of the money claimed to have been embezzled, and stated that the only issue on trial was the fact of a certain settlement, error in admitting documentary evidence tending to show receipt of the money otherwise abundantly proved is not prejudicial.</p> <p>6. Same — Evidence—Admissions of Complaining Witnesses.</p> <p>On the trial of an information for laroeny by embezzlement, evidence that the complaining witness, deceased at the time of the trial, had made statements tending to show that the transaction in issue had been settled, is inadmissible, the complaining witness not being a party to the suit, and the testimony being admissible only as impeaching and his attention not having been called to the statements.</p> <p>7 Same — Trial—Argument of Counsel.</p> <p>Convictions in criminal cases will not be. re versed because of the impassioned arguments of the prosecuting officers unless the court can clearly see that such arguments were unwarranted by the evidence and probably contributed to the result.</p> <p>8. Same.</p> <p>Where the verdict of guilty is the only one that could have been honestly rendered upon the record, and there was ground for arguing that the respondent had committed forgery and subornation of perjury to defend himself against the charge upon which he was being tried, such argument is no ground for reversal.</p>

Trespass under 2 Comp. Laws, §§ 4122-41-26, by Christian Watz, highway commissioner of Mayfield township, against William J. Sunderland. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Bill by Henry Taylor against Hattie M. Roniger to establish an equitable assignment of a mortgage, to foreclose the same, and to enjoin an action at law. From a decree for complainant, defendant appeals.

Bill by Andrew Boam and Louisa Boam against James Greenman, Minnie Oostigan, and Melzar Turner, administrator of the estate of Jacob D. Greenman, deceased, for the specific performance of a land contract. From a decree dismissing the bill, complainants appeal.

Bill by William H. Gainer and Henry Storms against John M. Nelson to restrain the removal of timber and logs from certain lakes and streams. From an order sustaining a general demurrer, complainants appeal.

Assumpsit by John Godkin against Herman Rutterbush, treasurer of Portsmouth township, for taxes paid under protest. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

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

Fred Cook was convicted of an assault with intent to murder, and sentenced to imprisonment for not less than twelve and one-half nor more than twenty years in the State house of correction and branch of the State prison at Marquette. The respondent was convicted and sentenced under the indeterminate sentence law, November 20, 1904, to the Michigan reformatory at Ionia, for larceny, for not less than six months nor more than five years.

Case by Otto Schelske against the township of Orange for personal injuries. There was judgment for plaintiff, and defendant brings error.

Assumpsit by John Scanlon against John Northwood upon a building contract. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Archibald R. Henry against the Michigan Sanitarium & Benevolent Association for services rendered. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Bill by Ephraim Perry against Hiram Reed and Finley Reed to enjoin the casting of water upon complainant’s . land. From a decree dismissing the bill, complainant appeals.

Assumpsit by the Fruit Dispatch Company against Nick Le Seno for goods sold and delivered. There was judgment for defendant, and plaintiff brings error. Plaintiff, a fruit importing company, sued defendant, a dealer in fruits at Jackson, Mich., for the price of a car load of bananas, sold to defendant on August 24, 1903, and delivered f. o. b. at New Orleans. The order was given and accepted and fruit refused by wire.

Clair; Tappan, J. Bill by William N. Carlisle against William J. Spain and Henry Gilroy for the dissolution of a partnership and for an accounting. The city of Mt. Clemens, John H. Westendorf, mayor, and William F. Kracht, city clerk, filed a cross-bill in the nature of a bill of interpleader against Margaret M. Carlisle and others to determine the disposal of certain moneys, and for other relief. From the decree rendered, complainants in the cross-bill appeal.

Bill by the township of Bangor and Andrew Carlson, highway commissioner, against the Bay City Traction & Electric Company to enjoin an encroachment upon a highway. From a decree dismissing the bill, complainants appeal.

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

Case by August f Boman against the Mashek Chemical & Iron Company for personal injuries. There was judgment for plaintiff, and defendant brings error. To convey into its mill, for fuel, sawdust brought upon its premises in cars defendant used a platform and a conveyor which ran from above, down to, and through the platform into a pit into which the sawdust was unloaded.

Mandamus by the Indiana Road Machine Company to compel George W. Keeney, supervisor of Clayton township, and others, to levy and collect a tax for the payment of a road machine. There was an order denying the writ, and relator brings certiorari.

<p>Habeas corpus proceedings by John C. Fox to obtain the release of George B. Fox from the Michigan reformatory at Ionia.</p>

Case by Rose Zulke, administratrix of the estate of August Zulke, deceased, against the Michigan Central Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Plaintiff’s decedent was, and had been for some months prior to his death, a flagman at the crossing of Main street in the village of Chelsea, over the defendant’s right of way.

Assumpsit by Wolf Galinski and Louis Galinski against the Security Fire-Insurance Company on a policy of insurance. There was judgment for plaintiffs, and defendant took a writ of error which was dismissed for want of prosecution: On motion of the United States Fidelity & Guaranty Company, surety on defendant’s appeal bond, to reinstate said appeal.

Mandamus by George Polasky to compel John W. Adams, circuit judge of Kalamazoo county, to set aside an order denying a motion to discharge petitioner from bail in capias proceedings.

Case by Edward Frantz, by next friend, against the Detroit United Railway and the Detroit, Fort Wayne & Belle Isle Railway Company for personal injuries. There was an order denying a motion to quash the service of an alias summons, and defendants bring certiorari.

Stephen Cahill was convicted of larceny from the person, and sentenced to imprisonment for not less than one nor more than one year in the State prison at Jackson.

<p>Mandamus by the village of River Rouge to compel George S. Hosmer, circuit judge of Wayne county, to grant a motion to dissolve a temporary injunction.</p>

Case by J. Darius Welch, administrator of the estate of William O. Sherman, deceased, against the Michigan, Central Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

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

Case made from Kent; Wolcott, J. Case by Albin Bruce against the ' Central Methodist Episcopal Church for personal injuries. There was an order sustaining a demurrer to the declaration, and plaintiff appeals.

Garnishment proceedings by Margaret McMillan against William Schneider as garnishee of William Lappin. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error. Plaintiff and appellee, in October, 1904, began suit against one William Lappin in the justices’ courts of Detroit, and, in November, 1904, she recovered a judgment for $197.50, damages, and $3.75, costs of suit.

Case by Lottie A. Marlatte against Jacob Weickgenant for malicious prosecution and abuse of criminal process. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

• Bill by Terry Dolan and Mary A. Dolan against Judith E. Smith to determine the boundary line of certain lots. From a decree dismissing the bill, complainants appeal.

Assumpsit by Maurice J. Keating against Martin Haley for a commission on the sale of certain real estate. There was judgment for defendant, and plaintiff brings error.

Petition by James B. Bradley, auditor general, for the sale of land delinquent for taxes: On objections of Tom J. G. Bolt. From a decree for petitioner, contestant appeals.

<p>Error to Hillsdale; Chester, J.</p> <p>Replevin by William Donley against Durell Fowler. There was judgment for plaintiff, and defendant brings error.</p>

, presiding. Case by Garfield Davis against the city of Adrian for personal injuries. There was judgment for plaintiff, and defendant brings error.

Debt by the township of Danby against Henry O. Beebe, George Hughes, Thomas J. Lockwood, and Stuart M. McKee for the amount of a bond. There was judgment for plaintiff, and defendants bring error.

Bill by Fred J. Bechtel, executor of the last will and testament of Fred Hodges, deceased, against Angeline F. Barton to enjoin the prosecution of a claim in probate court for a widow’s share of testator’s estate. Defendant filed an answer in the nature of a cross-bill to set aside a contract of separation. From a decree for defendant, complainant appeals.

Petition by James B. Bradley, auditor general, for the sale of land delinquent for taxes: On objections filed by John L. Stoddard. From a decree for contestant, petitioner appeals.

Bill by Mary E. Vogle, administratrix of the estate of William H. Vogle, deceased, against the Union Central Life-Insurance Company to require the application of the proceeds of a policy to the payment of a mortgage debt. Defendant filed an answer, asking that complainant be required to interplead. From a decree denying the prayer for an interpleader, and granting the prayer of the original bill, defendant appeals.

Case by Mae Hopkins against the Grand Rapids & Indiana Railroad Company for personal injuries. There was judgment for defendant on a verdict directed by the Court, and plaintiff brings error.

Case made from Charlevoix; Mayne, J. Assumpsit by Ezra F. Meech against the Citizens’ Insurance Company of Missouri on a policy of insurance. There was judgment for plaintiff, and defendant appeals.

<p>Appeal from Van'Buren; Des Voignes, J.</p> <p>Bill by Bert Leach against Henry A. Grube to redeem or establish a lien on land. From a decree for complainant, defendant appeals.</p>

Bill by Christian M. Bauer against William S. Long, Ella Long, and the Laboring Men’s Building & Loan Association to establish and foreclose a mechanic’s lien. From an order overruling a demurrer to the bill, defendants appeal. This is a suit in equity to establish and foreclose a mechanic’s lien.

Bill by the Detroit, Plymouth & Northville Railway Company against John C. Hartz to restrain the prosecution of an action of ejectment, and for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.

Bill by Edward L. Me Intyre and others against Marion M. McIntyre and others to set aside a deed and bill of sale. From a decree dismissing the bill, complainants appeal.

Bill by Augusta Jeske against Emil Jeske for a divorce. From the decree rendered, complainant appeals. Complainant obtained a decree of divorce on July 11, 1905, from the defendant, on the ground of extreme cruelty. He was at the time 55 years of age. They were married in November, 1874. They had six children-, their ages ranging from 8 to 29 years. Two were minors, aged 8 and 12.

<p>Mortgages— Foreclosure — Exchange op Property — Fraud— Evidence.</p> <p>On a bill to foreclose a mortgage given as part consideration for an exchange of property, evidence examined, and held, that defendant’s allegations of fraud in the transaction were not sustained.</p>

Petition by Robert Trombley, guardian of Joseph Buhler, an incompetent, against Andrew Klersy and Helen Klersy for a writ of assistance. From an order granting the writ, defendants appeal.

Bill by Lizzie Harvey against Peter Zimmer to compel the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.

Ejectment by Washington Rose against Albert Linderman. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Garnishment proceedings by Julius J. Patek against the Chicago & Northwestern Railway Company as garnishee of Felix Gresukewicz. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

<p>Attachment — Writ not Personally Served — Publication— Time.</p> <p>Where an attachment returnable September 11th was not personally served, and the first publication of the notice required by section 10573, 3 Comp. Laws, was made October 15th, the court was without jurisdiction of the proceedings, and properly denied plaintiff’s motion for an order to sell the property attached as perishable property; plaintiff’s remedy in case the sheriff was in default being by motion for an order to require him to make his return and to extend the time for the return of the writ if necessary, or if the delay was the fault of the publisher, application should have been made for an extension of the time for the return to bring the first publication within the 30 days.</p>

Mandamus by Merton Fitzpatrick, city attorney, to compel Charles M. Weaver, justice of the peace, to issue a warrant against Arthur Triechman for a violation of an ordinance. There was an order granting the writ, and respondent brings certiorari.

Mandamus by the superintendents of the poor of Wayne county to compel the board of county auditors of Wayne county to audit and allow an account'for the erection of a public building. There was an order denying the writ, and relators bring certiorari.

), J. Bill by William Kleinert against Charles Knoop, Henry F. Mertz, and Minnie Mertz to enforce a mechanic’s lien. Furstenberg Bros, petitioned for leave to intervene. From an order denying the petition, petitioners appeal.

Isaac J. Smith was convicted of peddling, without a license, and sentenced to pay a fine of $5.00 and costs or in default thereof to 10 days’ imprisonment in the county jail.

Bill by John Vercade against Maggie Vercade for a divorce. Defendant filed an answer in the nature of a cross-bill asking for a divorce. From a decree for complainant, and dismissing the cross-bill, defendant appeals.

<p>1. Sales — Action for Price — Breach of Warranty — Burden of Proof.</p> <p>In an action for the price of goods sold under an express warranty, the buyer having received and retained the goods without offer to return them or disaffirm the contract, the burden of proving a breach of the warranty is upon defendant, and plaintiff is not obliged to show that the goods were equal to the warranty.</p> <p>2. Same — Damages—Evidence.</p> <p>On the issue of the amount of damages caused defendant by a breach of warranty of quality of certain Portland cement, evidence examined, and held, sufficient to go to the jury on the amount of damages sustained.</p> <p>3. Evidence — Best Evidence — Dictated Letters — Person Dictating.</p> <p>Where the testimony of a clerk is offered to prove the sending of letters dictated to her by a member of a firm, and by her written out as dictated, addressed, and mailed, an objection on the ground that her testimony is hearsay and that the person dictating is the proper one by whom to prove the facts, is improperly sustained.</p>

Garnishment proceedings by William J. Fleming against the Fire Association of Philadelphia, impleaded with John Stevenson, Sr., as garnishee of J. Byron Sloane and John Stevenson, Jr. There was judgment for defendant Stevenson, Sr., and plaintiff brings error.

Bill by Anna Jobert, administratrix of the estate of Karl Toelle, deceased, against John Wagner and Edward Radtke to set aside a mortgage foreclosure, and for an accounting. From a decree dismissing the bill, complainant appeals.

Case by George Phiscator against Dwight O. Rice' for malicious prosecution. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Mandamus by Timothy E. Tarsney to compel the board of education of the city of Detroit to audit a claim for services rendered. There was an order denying the writ, and relator brings certiorari.

Mandamus by Clarence M. Lyle to compel Harvey A. Sherman, official stenographer of the 36th judicial circuit, to deliver a transcript of testimony.

Attachment proceedings in justice’s court by Daniel Marr against George S. Cook. There was judgment for plaintiff, and defendant took a special appeal to the circuit court. The judgment was set aside by the circuit court, and plaintiff brings error.

Case by Neis Boisen against Cobbs & Mitchell for personal injuries. There was judgment for plaintiff, and defendant brings error.

Clair; Tappan, J. Assumpsit by Edward L. Vincent, administrator of the estate of Fannie Slater, deceased, against the Port Huron Savings Bank to recover the amount of a deposit. There was judgment for plaintiff, and defendant brings error.

John F. Thompson was convicted of violating the local option law, and sentenced to pay a fine of $200 or in default thereof to imprisonment in the county jail not ex ceeding 60 days.

Case by Andrew D. Swick against the ¿Etna Portland Cement Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Nellie M. Philip, administratrix of the estate of George Philip, deceased, against Michael P. Heraty and John C. Weadock, receivers of the Bay Cities Consolidated Railway Company, for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendants bring error.

<p>Habeas corpus proceedings by George Downs to obtain his release from imprisonment in the State prison at Jackson.</p>

Case by Noble Davis, administrator of the estate of Harry E. Davis, deceased, against the Michigan Central Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

<p>Mandamus by Julius Knack to compel George S. Hosmer, circuit judge of Wayne county, to enter judgment for relator on dismissal of a writ of certiorari.</p>

<p>Appeal from Ontonagon; Cooper, J.</p> <p>Bill by Timothy Nester against Thomas G. Sullivan for a partnership accounting. From a decree for complainant, defendant appeals.</p>

<p>Error to Schoolcraft; Steere, J.</p> <p>Trover by John Henry against , the Manistique Iron Company. There was judgment for plaintiff, and defendant brings error.</p>

, presiding. Bill by R. Andrew Fleming, administrator de bonis non of the estate of Frank Wood, deceased, against Wesley F. Wood and others to set aside certain deeds. From a decree dismissing the bill, complainant appeals.

<p>1. Marriage — Existence of Relation — Common-Law Marriage —Requisites.</p> <p>To constitute a common-law marriage, the parties must presently agree to take each other for husband and wife, and live together in that relation.</p> <p>2. Same — Evidence—Sufficiency.</p> <p>On a bill to affirm a common-law marriage with defendant, the testimony of the complainant that defendant requested her to come to his house, and that they would be married as soon as his mother left; that whenever she asked him to have a marriage ceremony performed, he put her off; and that for several years they lived together, she supposing that she was going to be his wife — does not establish a common-law marriage.</p>

Mrs. Joseph Journeau was convicted of violating the liquor law. Respondent was charged with having been engaged, at a time stated- and in a place described in the information, in the business of selling, and keeping for sale, malt, etc., liquors, at retail, without having paid the tax upon such business or having the receipt for such payment posted up. 3 Comp. Laws, § 5385. The jury by direction of the court returned a verdict of guilty.

Assumpsit by Samuel G. M. Gates against the Detroit & Mackinac Railway Company for breach of contract to transport certain logs. There was judgment for plaintiff, and defendant brings error.

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

Case by John A. C. Menton against Miles P. Cook to recover damages for a refusal to receive plaintiff’s ballot at a special election. There was judgment for defendant, and plaintiff brings error.

Patrick M. Doyle presented his ¡final account as administrator of the estate of Margaret G. Doyle, deceased. The account was disallowed in the probate court, and the administrator appealed to the circuit court. There was judgment for the administrator at the circuit, and James Campbell, sole heir of deceased, brings error.

Bill by Elizabeth York against Harrison P. West to remove a cloud from title to certain land. From a decree for complainant, defendant appeals.

Petition by the Port Huron Savings Bank against Eugene E. Law, circuit judge of St. Clair county, and the Supreme Tent Knights of' the Maccabees of the World for a writ of prohibition to restrain certain proceedings in chancery. Writ denied March 26, 1907.

Garnishment proceedings by Andrew O. Wood and Thomas H. Stephens, copartners as the Greenslade Oil Company, against Robert F. Eldredge as garnishee of the Macomb Sugar Company. There was judgment for the garnishee defendant, and plaintiffs bring error.

Bill of interpleader by the township of Washington against the Wabash Bridge & Iron Works, the First National Bank of Wabash, the First National Bank of Huntington, and E. W. Bowen & Company to determine the title to a township order. From a decree for defendant First National Bank of Wabash, defendants First National Bank of Huntington and E. W. Bowen & Company appeal.

Mandamus by Hozial Horner, supervisor of the township of Portland, to compel the board of supervisors of Ionia county and Isaiah Long, chairman of said board, to declare a resolution passed by a majority vote to be carried. There was an order granting the writ, and respondent brings certiorari.

<p>Appeal from Washtenaw; Kinne, J.</p> <p>Bill by Caroline Haab against Joseph Schneeberger, Catherine Curry, and others, for the construction of a will. From a decree for complainant, defendants Schneeberger and Curry appeal.</p> <p>John Schneeberger died December 28, 1877, aged 77 years, leaving a last will and testament, executed January 19, 1875. He left a widow, Caroline, aged 66 years, a son Joseph, the children of a deceased son John, and the complainant, his daughter, as his heirs at law. The will reads as follows:</p> <p>‘ ‘ First. I give and devise to my wife, Caroline, my farm in the township of Freedom, county and State aforesaid, consisting of two hundred acres, to be enjoyed by her as long as she shall remain my widow. In case of her marriage my daughter Caroline shall' take the said farm, to be enjoyed by her during her life, and after her decease the said farm shall be divided among her issue, share and share alike.</p> <p>“ Second. I give and bequeath to my said wife all my personal estate on my said farm at the time of my death, to be used and enjoyed by her as long as'she shall remain my widow. In case of her marriage such property shall pass to my daughter Caroline absolutely.</p> <p>“Third. I give and bequeath to Leonard Gruner, of the city of Ann Arbor, all the monies, evidences of debt of all kinds, viz.: Money on hand, money loaned and outstanding at the time of my death; and the probate court of the county of Washtenaw shall provide for a succession of trustees and require them to give the necessary security for the faithful performance of their duties, and they shall be entitled to reasonable compensation for their services, upon trust; that he, the said Gruner, and his successors shall pay the interest of such sums to my wife, Caroline, or authorize and empower her to receive and take the same to her own use as her separate estate during her life, subject to the conditions hereinafter made, and. after her decease the said sums of money shall be divided into three parts and distributed as follows: one-third part to be equally divided among the issue of my son John F. Schneeberger (nowdeceased), one-third part to be divided equally among the children of my son Joseph Schneeberger, and one-third part to be divided equally among the issue of my daughter, Caroline Haab.</p> <p>“ Fourth. I hereby provide that my said wife, Caroline, in case of her marriage, shall elect whether ■ she will take her dower in my estate or the interest of the money in trust as herein provided. In case she should elect to take her dower, the said trust shall terminate and the said moneys shall be divided among my grandchildren as herein provided; otherwise, the interest shall be paid her as provided in the third provision herein.”</p> <p>Of the 200 acres, 80 were under cultivation. The will was admitted to probate, the estate settled, and an order of the probate court made adjudging that “the said residue of the said personal estate and said pieces or parcels of land be, and the same are, assigned to the said devisees and legatees according to said last will and testament. ” His widow did not marry, and died in 1905. Defendant Joseph then petitioned the probate court for the appointment of an administrator de bonis non with will annexed, claiming that the farm and the personal property thereon are intestate property, and belong to the heirs of John Schneeberger. The testator’s daughter, Caroline, married in 1870, and had five children, two of whom were living at the time of the publication of the will. She and her husband lived upon the farm, her husband leasing it and paying rent, until his death, in 1903. The widow lived with them. This lease was executed by Mr. John Schneeberger and complainant’s husband February 11, 1872, and was to continue during the life of Mr. Schneeberger and his wife, but was to terminate if the daughter Coroline should die before the death of her father and mother.</p> <p>After the presentation of the petition by Joseph to the probate court, complainant filed this bill to obtain a construction of the will. Issue was duly joined, proofs taken, and a decree entered holding:</p> <p>“That the complainant, Caroline Haab, is entitled to the full use and enjoyment of the said farm for and during the remainder of her lifetime and of all the said farm personalty absolutely; that the devise of the said farm to the issue of complainant became and was vested in such issue on the death of the testator, subject to open up and let in after-born children of the complainant.”</p> <p>Some years before executing the will the testator deeded 120 acres to each of his sons, John F. and Joseph, and gave them other property from time to time.</p>

<p>Mandamus by Zachariah Hayward to compel James B. Bradley, auditor general, to cancel a tax deed.</p>

<p>Equity — Injunction — Subjects op Relief — Rights of Mortgagee.</p> <p>Equity will not interfere to enjoin the selling, on mortgaged premises, of beer not of the mortgagee’s manufacture, contrary to the terms of the mortgage, the act complained of not tending to lessen the mortgagee’s security.</p>

Cross-appeals from Houghton; Streeter, J. Bill by the Michigan Iron & Land Company, Limited, against George Nester, administrator of the estate of Thomas Nester, deceased, and others, for an accounting. From the decree rendered, all parties appeal.

Case by Otis E. Cutler against the Grand Rapids, Grand Haven & Muskegon Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by the Escanaba Timber Land Company against Albert H. Rusch to redeem certain land from tax sales. From a decree for complainant, defendant appeals.

Case by Victor Jurkiewicz, administrator of the estate of Alexander J urkiewicz, deceased, against the American Car & Foundry Company for the negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Petition by the Flint Land Company, Limited, against the Grand Rapids Terminal Railway Company and others for a writ of assistance. From a decree dismissing the petition, petitioner appeals.

Perry F. Powers, auditor general, appealed to the circuit court from an order determining that certain property was not subject to an inheritance tax. There was judgment for the estate, and James B. Bradley, auditor general, brings error.

Assumpsit by Fuller H. Hosken against Frankie J. Carr for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.

Bill by Henry Behrns, an incompetent, by Charles Scheer, guardian, against Charles Qualman and Augusta Qualman to set aside a deed. From a decree dismissing the bill, complainant appeals.

Assumpsit by John Plefka against the Detroit United Railway for money had and received. There was judgment for plaintiff, and defendant brings error.

Bert Rivers was convicted of taking indecent liberties with the person of a female child under the age of 14 years without the intent to commit the crime of rape, and sentenced to imprisonment for not less than two nor more than ten years in the State prison at Jackson.

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

Case by Daniel Hartnett against the Owosso Sugar Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Plaintiff was employed on a dredge operated by defendant. The dredge was 78 feet long, 31 feet wide, and had a main deck, cabin roof, and upper cabin roof.

Appeal, from Clinton; Searl, J. Bill by Daniel S. Rodgers against John H. Robson, executor of the last will and testament of David A. Hayt, deceased, to foreclose a mortgage. From a decree dismissing the bill, complainant appeals. This is a suit brought to foreclose a mortgage dated December 5, 1883. It was given to secure a note for $550, executed by the defendant’s testate, and was payable December 5, 1888. The record does not show the date of filing the bill.

Bill by Augusta Ewing and others against Helen Lamphere and others to enjoin the dissipation of an estate. From an order sustaining a demurrer to the bill, complainants appeal.

Replevin by Marcus B. Duke and Edward Ingraham against Peter Beatty and Lemuel Beatty. There was judgment for plaintiffs on a verdict directed by the court, and defendants bring error.

North, J. Case by Alexander Dixon against the Grand Trunk Western Railway Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

Bill by Myra Smith, administratrix of the estate of Aaron E. Gardner, deceased, against Edward B. Gardner and Marie Gardner for the cancellation'of a discharge of a certain mortgage, and to restore said mortgage and notes accompanying it. From a decree for complainant, defendants appeal. On January 14, 1902, one Aaron Gardner and his wife conveyed 160 acres of land to the defendant Edward, their son. The title was in Aaron Gardner.

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Myra J. Ferguson against John G. Ferguson for a divorce: On settlement of the award of alimony, defendant appeals.</p>

Case by Edward A. Braasch, by next friend, against the Michigan Stove Works for personal injuries There was judgment for defendant on a verdict directed by the. court, and plaintiff brings error.

Habeas corpus proceedings by Henry Kenney to obtain his release from imprisonment in the jail of Ionia county. There was an order denying the writ, and petitioner brings certiorari.

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

Bill by Peter Owens against Perry F. Powers, auditor general, Edwin A. Wildey, commissioner of the State land office, the Hecla Portland Cement & Coal Company and the Detroit Trust Company to set aside the sales of certain land delinquent for taxes, and to quiet title. From a decree for complainant, defendants appeal.

), J. Mandamus by George W. Collier to compel tbe township board of St. Charles township to audit and allow the payment of a bond. There was an order denying the writ, and relator brings certiorari.

Trespass quare clausum fregit by Joseph Parkey, highway commissioner of Burt township, against William J.' Galloway. There was judgment for plaintiff, and defendant brings error.

Cross-appeals from Genesee; Wisner, J. Bill by the W. F. Stewart Company and others against the city of Flint and Milton C. Pettibone, city treasurer, to restrain the collection of a sewer tax. Defendants filed an answer in the nature of a cross-bill asking for a decree for the amounts of the assessments against complainants. From the decree rendered, both parties appeal.

Assumpsit by the Michigan Tradesman against the Superior Manufacturing Company for breach of an advertising contract. There was judgment for plaintiff, and defendant brings error.

Assumpsit by Eugene L. Kendall against William A. Chapel for work and labor. There was judgment for defendant, and plaintiff brings error.