Volume 150 — Michigan Reports

Bill by the village of Fairview and others against the city of Detroit and others to enjoin the interference with the officers or agents of complainant village, and for other relief. From a decree dismissing the bill, complainants appeal.

<p>Mandamus — Propriety—Orders Reviewable — Other Remedy-Error.</p> <p>An order of the circuit court denying a dilatory appeal from an order of the probate court allowing the final account of an executor is a final order, reviewable upon error, and is therefore not the proper subject of mandamus proceedings.</p>

Bill by Ammi W. Wright against Ansel Kaynor, Levina Kaynor, William H. Bennett, and others, to determine the ownership of certain land, and for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals. Defendant Ansel and Augusta Kaynor were owners as tenants in common of certain land of which that in controversy is a part.

. Error to Emmet; Shepherd, J. Assumpsit by John W. Weaver against George D. Richards for a commission for the sale of land. There was judgment for plaintiff, and defendant brings error.

Bill by Aaron Jones and others against Elmer E. Gable, drain commissioner, and others, to set aside an assessment for a drain tax. Prom a decree dismissing the bill, complainants appeal.

Bill by Lucia E. Blount against Elisha D. Eames and Alice Waltz Eames to set aside certain deeds, and to remove a cloud from the title to land. From a decree dismissing the bill, complainant appeals.

Case by Annie Habina, by next friend, against the Twin City General Electric Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case by Henry Reason against the Detroit, Grand Haven & Milwaukee Railway Company for failure to transport certain goods. There was judgment for plaintiff, and defendant brings error.

Mandamus by Clare E. Hoffman, prosecuting attorney. to compel Kelly S. Searl, circuit judge, presiding, of Allegan county, to set aside an order quashing an information.

<p>1. Rtt.t.s of Exceptions — Allowance—Discretion of Court— Amendments — Effect.</p> <p>At the close of plaintiff’s case, defendant moved for a directed verdict, and on the denial of his motion excepted and relying on Act No. 182, Pub. Acts 1899, introduced testimony and made his defense on the merits, the trial resulting in a verdict and judgment for plaintiff. Defendant, relying solely on the error in overruling his motion for a directed verdict, then presented a bill of exceptions containing only plaintiff’s evidence which the trial judge refused to sign, and allowed amendments offered by plaintiff containing a large portion of defendant’s testimony. On an application for a mandamus to compel the circuit judge to sign the bill of exceptions as presented, held, that no abuse of discretion was shown, as the circuit judge had not by his act deprived defendant of the benefit of the exception on which he relied.</p> <p>3. Mandamus — Propriety—Compelling Signing of Bill of Exceptions — Review on Merits.</p> <p>Defendant, having proposed a bill of exceptions containing only plaintiff’s evidence for the purpose of reviewing the denial of his motion for a directed verdict, and the circuit judge having allowed amendments proposed by plaintiff containing certain evidence introduced by defendant after the denial of his motion, defendant applied to this court for a mandamus to compel the circuit judge to sign the bill of exceptions as proposed. Held, that since this court would deny the writ if, from the exhaustive examination of plaintiff’s evidence necessary to pass upon the question raised, it should find that the circuit court had ruled correctly on the error assigned, which examination and determination should not be made in advance of a hearing upon a complete record, the writ would be denied and defendant left to his remedy by writ of error.</p>

<p>Mandamus by Joseph. L. Hudson and others to compel John E. Bird, attorney general, to file an information. Submitted</p>

<p>Constitutional Law — Public Funds — Appropriation to Private Purpose.</p> <p>Act No. 261, Pub. Acts 1907, appropriating State funds for the use of the “Michigan Corn Improvement Association,” a vol-„ untary unincorporated society the membership of which is limited to “persons actively interested in the improvement of corn and resident in the State of Michigan,” is an attempt to devote public funds to a private purpose, and is unconstitutional.</p>

Mandamus by E. T. Wood to compel Morse Rohnert, circuit judge of Wayne county, to set aside the provisions of a decree awarding certain costs.

Bill by the Garth Lumber & Shingle Company and ■others to restrain Ole Johnson and others from interfering with complainants’ sorting logs and other forest products in a navigable stream. From an order granting a temporary injunction, defendants appeal: On motion to dismiss the appeal.

Assumpsit by Mary Harty, administratrix of the estate of Mary Harty, deceased, against Margaret Teagan for money had and received. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

, presiding. Bill by Harry L. Bridgman and the Masonic Temple .Association against Catharine A. McIntyre for the specific performance of a land contract. From a decree overruling a demurrer to the bill, defendant appeals.

Bill by George Zeigler and Cora Zeigler against the Valley Coal Company, the Michigan Vitrified Brick Company, Bernard Voss, and Christina Voss to establish a-vendor’s lien. From a decree for complainants, defendant Michigan Vitrified Brick Company appeals.

Bill by Orlando L. Torrey and others against the Toledo Portland Cement Company, William Watts, and others, for the appointment of a receiver of defendant corporation, for an accounting, and for general relief. From an order overruling the demurrer of defendant Watts, he appeals.

Replevin by Fred Erickson against Nante Lampi, Alex Oksa, and Mathilda Oksa. There was judgment for defendants Oksa for the amount of a lien, under 3 Comp. Laws, § 10746, and plaintiff brings error.

<p>Divorce — Evidencie—Sufficiency—Testimony of Complainant.</p> <p>There is no hard and fast rule that prevents granting a decree of divorce upon the testimony of the complainant alone, though in such a case the right to relief must be very clearly established.</p>

Bill by Hester C. Chase against Emma Spencer, Ella Corbin, Delia Alger, and others, to set aside certain deeds. From a decree dismissing the bill, complainant and defendants Corbin and Alger appeal.

Bill by Frances Page against Lucy Huckins and Henry Wiseman to enjoin the casting of water upon complainant’s land. From a decree for complainant, defendants appeal.

Assumpsit by Mary E. Henderson against the Grand Rapids Accident & Health Insurance Company on a policy of insurance. There was judgment for plaintiff, and .defendant brings error.

Petition by R. Andrew Fleming, trustee, against Helen H. Littell, Eva L. Littell, W. J. Ensminger, and Morse-Ives to set aside an assignment of the income of a spendthrift trust. From a decree for petitioner, defendants. Ensminger and Ives appeal.

Assumpsit by the Buick Motor Company against the Reid Manufacturing Company for goods sold and delivered. There was judgment for plaintiff, and defendant brings error. In 1903 plaintiff was engaged in the manufacture of automobiles, stationary and marine engines, with one factory at Flint and another at Jackson. The defendant company was engaged in the business of assembling automobiles.

Bill by the townships of Clinton, Macon, Tecumseh, and Raisin against Franklin D. Teachout, drain commissioner of Lenawee county, to set aside certain drain proceedings, and to restrain the collection of assessments. From a decree dismissing the bill, complainants appeal.

Assumpsit by Elmer B. Jones against Charles A. Hoffman and Charles R. Lau for work and labor. There was judgment for plaintiff, and defendants bring error.

Assumpsit by the International Textbook Company against Dilvin Ohl on a contract of guaranty. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Mandamus by Schuyler S. Olds to compel William A. French, commissioner of the State land office, to permit the location of certain alleged swamp land. The Michigan Land & Lumber Company, Limited, intervened. The writ issued as to a portion of the land claimed, and issues were ordered to be framed and referred to Wilbur J. Beach, special commissioner: On the report of said commissioner.

Ejectment by Frederick D. Sanborn, executor of, and trustee under, the last will and testament of James W. Sanborn, deceased, against Henry N. Loud, George A. Loud, and Edward F. Loud, copartners as H. M. Loud’s Sons Company, and William Carroll. There was judgment for defendants, and plaintiff brings error.

<p>Error to Sanilac; Beach, J.</p> <p>Assumpsit by Clare Orr against David J. Kenny for breach of a contract for the sale of certain lumber. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.</p>

, presiding. Bill by the Chicago, Kalamazoo & Saginaw Railway Company against M. Henry Lane and Frank B. Lay for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals. Qomplainant owned and operated a railroad from Woodbury on the north to Kalamazoo upon the south. It desired an extension to the south so as to connect with some trunk line running east and west which would increase its facilities for travel and freight.

Bill by Ira L. Wood, trustee in bankruptcy of the Manna. Cereal Company, Limited, against Morris H. Sloman, Theodore L. Backus, D. Fred Charlton, and others, to enforce a statutory liability for unpaid subscriptions, for an accounting, and for general relief. From an order overruling demurrers to the bill, defendants appeal.

<p>1. Corporations — Foreign Corporations — Admission to State —Banking Corporations.</p> <p>Banking corporations and those corporations which are within the contemplation of our banking laws are not within the provisions of the statute (Act No. 206, Pub. Acts 1901, as amended by Act No. 34, Pub. Acts 1903) prescribing the terms and conditions on which foreign corporations may be admitted to do business in Michigan.</p> <p>2. Same — Right to do Business — Filing Articles — Duty of Secretary of State — Matters Considered.</p> <p>In considering whether a foreign corporation presenting its articles for record preparatory to being authorized to do business in this State is such a corporation as may be so authorized, the secretary of State may consider the history of the applicant, the character of its business, and, it being a financial corporation, the character of the property upon which its bonds or mortgages, which it purposes to sell to citizens of this State, are secured.</p> <p>3. Same — Refusal to Record Articles — Mandamus—Propriety.</p> <p>Mandamus will not issue to compel the secretary of State to receive, file, and record the papers of a foreign corporation which, as appears from its history and the persons and corporations with which it is associated, desires to come within the State for the purpose of selling its bonds and securities which are practically worthless.</p> <p>4. Mandamus — Discretion—Propriety of Issuance.</p> <p>Mandamus is a discretionary writ which will not be awarded in all cases in which a prima facie legal right is shown, but will be withheld whenever the public interest would be injuriously affected by its issuance, or there is a doubt of its propriety.</p>

<p>Error to Oakland; Smith, J.</p> <p>Carroll Beardsley was convicted of manslaughter, and sentenced to imprisonment for not less than one nor more than fiveyears in the State prison at Jackson.</p>

Assumpsit by Emma Dick against the General Assembly of the Order of the Amaranth on a mutual benefit certificate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Ejectment by the Pere Marquette Railroad Company against Edmond A. Graham and others. There was judgment for plaintiff, and defendants bring error.

. Case made from Ottawa; Padgham, J. Assumpsit by John W. Vandenberg against Conrad B. Slagh for services rendered. There was judgment for plaintiff, and defendant appeals.

<p>Appeal from St. Clair; Law, J.</p> <p>Bill by Frank Grandchamp and others against George McCormick, drain commissioner, to enjoin the construction of a drain. From an order sustaining a demurrer to the bill, complainants appeal.</p>

Case by John Deneen against the Houghton County Street-Railway Company-for personal injuries. There was judgment for plaintiff, and defendant brings error.

Case by Sophie Roy against Edward P. Bordas, Joseph Bosch, John H. Wilson, George W. Orr, and Norbert Sarazin for fraud. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.

Case by May Ellen Abbott against the city of Detroit for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>Contempt proceedings by Thomas L. Wilkinson against the Dunkley-Williams Company for the violation of an injunction.</p>

Certiorari by Henry H. Liekly and others to review the action of S. Chase Bishopp, special drain commissioner, in establishing a drain. There was an order dismissing the writ, and plaintiffs bring error.

Assumpsit by the Superior Drill Company against Claude B. Carpenter and George H. Carpenter for goods sold and delivered. There was judgment for defendants, and plaintiff brings error.

Bill by Charles F. Hammond against Herbert W. Noble for the specific performance of a contract. From ■ a decree dismissing the bill, complainant appeals.

Bill by Peter White against George W. Shaw and the Marquette National Bank to redeem from a tax deed. From a decree for complainant, defendants appeal.

Assumpsit by the Muncie Wheel & Jobbing Company against Edward B. Finch and William A. Pungs for goods sold and delivered. There was judgment for plaintiff, and defendants bring error.

Clair; Tappan, J. Assumpsit by the city of Port Huron against Asa H. Wright and Charles E. Boyce, executors of the last will and testament of Frederick Saunders, deceased, for taxes. There was judgment for plaintiff, and defendants bring error. This is a suit to recover city taxes for the years 1903 and 1904. In the circuit court it was tried without a jury, a finding of facts rendered, and judgment entered for plaintiff. We quote from said finding of facts: “1.

Case by John Cook against Edward F. Hastings, Thomas Stack, and James McDermott for an assault and battery and false imprisonment. There was judgment for defendants, and plaintiff brings error.

Assumpsit by Henry B. Miller and Harry E. Miller, copartners as H. B. Miller & Son, against the Tanners’ Supply Company, Limited, for breach of a contract for the sale of certain wood. There was judgment for plaintiffs, and defendant brings error.

Bill of review by Charles W. Hall against John A. Miller, Clarence J. Miller, and James B. Bradley, auditor general, to set aside a decree for the sale of certain land delinquent for taxes. Defendants Miller filed an answer in. the nature of a cross-bill to quiet title. From a decree for complainant, defendants appeal.

Case by William Gillespie against the Grand Trunk Railway Company of Canada and the Grand Trunk Western Railway Company for personal injuries. There was judgment for plaintiff, and defendants bring error.

Bill by John E. Bird, attorney general, to enjoin the common council of the city of Detroit, Frances A. Blades, controller, William B. Thompson, treasurer, and Frank Reich from using a fund raised by taxation for the construction of a municipal paving-brick plant. From a decree for complainant, defendants appeal.

Assumpsit by the Brunswick-Balke-Collender Company against the Northern Assurance Company on a policy of insurance. There was judgment for plaintiff, and defendant brings error.

Bill by I. H. Weatherwax, trustee in bankruptcy of the estate of George K. Harder & Company, against Peter Gorman, Peter Hendrick, and C. E. Collins to set aside certain deeds. From the decree rendered, complainant appeals.

Seraph C. Blackman presented for probate the last will and testament of Eliza M. Straight, deceased. The will was allowed in the probate court, and Eliza A. Andrews appealed to the circuit court. There was judgment for contestant, and proponent brings error.

<p>1. Slander — Justification—Evidence—Sufficiency.</p> <p>In an action for slander in charging plaintiff with stealing defendant’s chickens, in which a justification is pleaded, a contention that the evidence tending to prove justification was insufficient because.it only justified the language used in a literal sense, and not in the sense in which it is charged in the declaration, is untenable where, though .defendant testified on cross-examination that he could not swear that plaintiff stole his chickens, the inference that he did steal them could be drawn from defendant’s testimony.</p> <p>2. Same — Pleading—Notice of Justification — Objections.</p> <p>A complaint on error that a notice of justification in an action for slander is insufficient because it only justifies the language used in a literal sense, and not in the sense in which it is charged, is an objection to a variance in a mere matter of form which, not being raised in the trial court, cannot be considered.</p> <p>3. Trial — Instructions — Requests — Necessity — Specific )Instruotions.</p> <p>Where plaintiff in error has no just ground to complain of what the court said in its instructions, he cannot complain of failure to give more specific instructions as to points about which he preferred no requests.</p> <p>4. Slander — Trial—Instructions—Inference of Malice.</p> <p>A claim that, by reason of a modification of one of plaintiff’s requests, the jury would not understand that defendant’s malice was to be inferred if he charged that plaintiff stole his chickens, is not meritorious where the court charged that, if the jury found that the words were spoken as alleged in the declaration, the law presumed they were spoken maliciously and that good faith was no defense.</p> <p>5. Damages — Evidence—Instructions—Harmless Error — Cure by Verdict.</p> <p>Errors in excluding testimony and in charging the jury respecting the measure of plaintiff’s damages are not reviewable in a case in which the jury found a verdict for defend" ant.</p>

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 plaintiff, and defendant brings error.

Bill by Joseph La Plant and Rosa La Plant against Solon Lester to remove a cloud from the title to certain land. Prom a decree dismissing the bill, complainants appeal.

, presiding. Bill by Horace Lamb against the Pontiac, Oxford & Northern Railroad Company and Robert J. Lounsbury, receiver, for the restoration of a stock pass under defendant’s roadbed. Prom a decree for complainant, defendants appeal.

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

Mary Maier presented for probate the last will and testament of John E. Mansbach, deceased. The will was allowed in the probate court, and Paulina Mansbach appealed to the circuit court. There was judgment for proponent, and contestant brings error.

<p>1. Executors and Administrators — Appointment op Administrator — Application by Creditor — Dictation by Applicant.</p> <p>Section 9324, 3 Comp. Laws, subd. 2, providing that, after 30 days without application by those primarily entitled, administration may be granted to one or more of the principal creditors of a deceased person, if any such are competent and willing to take it, does not give to the creditor filing the petition the right to dictate the appointment, since, if the persons primarily entitled to apply are deprived by their delay of their right to be heard, it is the duty of the probate judge to listen to the other creditors and give due consideration to •their rights.</p> <p>2. Mandamus — Amended Petition — Questions Considered.</p> <p>Questions presented by an amended petition for mandamus, • which respondent has never answered, nor been called upon to answer, will not be considered.</p> <p>3. Same — Further Return.</p> <p>In mandamus to a probate judge, a suggestion in petitioner’s brief that the court make a'determination of the case upon the record before it, and if adverse to petitioner that it order a further return to an amended petition on file, cannot be complied with for the reason that the court will not decide piecemeal a mandamus case, in which the proceedings should be expeditious, especially so where it does not appear, even by the amended petition, that the point raised was made before respondent.</p> <p>4. Same — Questions Considered — Questions op Fact.</p> <p>Whether the person appointed administrator was a proper person to be appointed will not be considered on mandamus to the probate judge where there was evidence from which the judge had a right to reach the conclusion he did reach.</p> <p>5. Courts — Decisions—Stare Decisis.</p> <p>The denial on its merits of an application for a mandamus relieves the court of the duty of deciding whether the application should not have been denied for other reasons, and cannot be taken as an authority that mandamus is a proper remedy in similar cases.</p>

Case by Albert 0. Veit against the Ann Arbor- Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.

, Case by Allen C. Adsit, administrator of the estate of Rufus Corkins, deceased, against Daniel K. Ide and George Corkins for money obtained of plaintiff’s intestate by fraud and undue influence. There was judgment for plaintiff, and defendants bring error.

<p>Error to Grand Traverse; Mayne,- J.</p> <p>Replevin by Alpbonso B. Huellmantel against John J. Tweddle. There was judgment for plaintiff, and defendant brings error.</p>

Cross-appeals from. Alpena; Emerick, J. Bill by Benjamin R. Young against James J. Potter and John D. Potter for an accounting. Prom the decree rendered, both parties appeal.

Case by Otto Briggs against the township of Pine River for personal injuries. There was judgment for defendant on a verdict directed by-the court, and plaintiff brings error.

Case by Minnie Sears against Frederick A. Wegner for fraud and deceit. There was an order sustaining a demurrer to the declaration, and plaintiff brings error. The court sustained a demurrer to the declaration. The substance of the declaration is as follows: On December 34, 1897, plaintiff was an unmarried woman living in Adrian, engaged in school teaching at Lenawee Junction, near the city of Adrian.

Bill by Frank L. Dodge against Myron W. Mills and David Mills, executors of the last will and testament of Nelson Mills, deceased, and others, for an accounting. From an order overruling the demurrer of defendant ex.ecutors, they appeal.

Case by M. Jay Morían against the village of Marcellus for personal and other injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Case by Nettie Vincent, administratrix of the estate of George Vincent, deceased, against Charles H. Clements and Edwin W. Smith, copartners as Clements & Smith, and Edwin F. Webster, Edward M. Harrigan, and William H. Reid, copartners as Webster, Harrigan & Reid, for negligently causing the death of plaintiff’s intestate. There was judgment for plaintiff as against defendants Clements and Smith, and they bring error.

, presiding. Habeas corpus proceedings by Frederick Smith against Benjamin Kiel and Jane Kiel for the custody of Jennie Smith, an infant. There was an order awarding the custody to petitioner, and respondents bring certiorari.

<p>1. Criminal Law — Indeterminate Sentence — Validity—Fixing Maximum.</p> <p>Where, in sentencing a person convicted under section 11488, 8 Comp. Laws, of assault with intent to kill and murder, the penalty for which is imprisonment for life or any term of years, the court follows the form of sentence provided by section 1, Act No. 184, Pub. Acts 1905, instead of the form provided by section 3, and recommends a maximum term instead of fixing it, the sentence must be construed as fixingthe maximum term at the number of years recommended, and is not, therefore, a nullity justifying another sentence.</p> <p>3. Same — Indeterminate Sentence — Fixing Maximum — Duty of Court.</p> <p>A person convicted of a crime, the penalty for whioh is imprisonment for life or any term of years, is entitled, under section 3, Act No. 184, Pub. Acts 1905, to have the decision of the judge upon the maximum of his imprisonment and a minimum fixed which shall not exceed half of such maximum, and a sentence which fixes a maximum, and a minimum in . excess of one-half of such maximum, is invalid as to such excess.</p> <p>3. Same — Sentence—Resentence—Validity.</p> <p>A trial court cannot set aside a valid sentence and impose a new and different one after the prisoner has been remanded to jail to await the execution of his sentence.</p> <p>4. Same — Sentence—Commitment—Necessity.</p> <p>Where, after a prisoner had been legally sentenced and remanded to jail to await the execution of his sentence, the court erroneously undertook to vacate the sentence and impose another, upon which a commitment issued and the prisoner was confined in prison, this court upon habeas corpus will not order the discharge of the prisoner for want of a valid commitment, but he will be remanded to the custody of the superintendent of the prison in order that the court may correct its record and issue a proper commitment.</p>

Case by August Schulte against the Pfaudler Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Assumpsit by Elmer E. Gable and Philip W. Burgess, drain commissioners respectively of Allegan and Barry counties, against Joseph Deal and others for costs incurred in certain drain proceedings. There -was judgment for plaintiffs, and defendants bring error.

<p>1. Theaters and Shows — License—Necessity.</p> <p>A performance in a theater situated within an enclosed park, to which entrance must be gained by payment of an admission fee before entrance can be had to the theater, is an exhibition to which admission is obtained on the payment of money which may be licensed by the township or village in which it is situated under sections 3480, 3481, 1 Comp. Laws.</p> <p>3. Townships — Resolutions — Authority to Pass — Special Meeting op Board — Record on Appeal.</p> <p>A claim that the township board had no authority to pass the resolution in question, because its action was taken at a special meeting called for another purpose, cannot be considered in this court where the record of the township board, though introduced in evidence below, is not before the court, and the court cannot say whether the trial court, in overruling the contention, based its ruling on a finding that the record, fairly construed, showed that the meeting was called for the purpose of acting upon the resolution, or held that the action was regular because all members of the board were present and consenting.</p> <p>3. Criminal Law — Appeals — Questions Considered — Suppicienoy op Record.</p> <p>Contentions that'a resolution of a township board licensing theaters has no application to respondent, and that the license imposed thereby is unreasonable, cannot be considered on exceptions before sentence where not made in the court below and the resolution is not in the record.</p>

Case by Jarvis Guest against the Edison Illuminating Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Charles Evans was convicted of burglary and sentenced to imprisonment for not less than three nor more than five years in the State prison at Jackson.

Burton Wycoff was convicted of burglary and sentenced to imprisonment for not less than 7$ nor more than 15 years in the State prison at Jackson. Defendant was convicted of the crime of burglary from the shop of the Lambert Food & Machine Company, a corporation, in the city of Marshall.

Mandamus by George E. Ellis to compel John L. Boer, city clerk of Grand Rapids, to receive and file a petition under the primary election law. There was an order denying the writ, and relator brings certiorari.

Mandamus by Homer H. Quay, prosecuting attorney, to compel Frank Shepherd, circuit judge of Cheboygan county, to vacate an order denying an order to show cause.

<p>1. Mandamus — Propriety—Discretionary Writ — Furtherance on Justice.</p> <p>The wrib of mandamus is a discretionary writ and will not be issued when inconsistent with justice</p> <p>3. Receivers — Bonds—Premium—Payment by Creditor — Discretion.</p> <p>Where a receiver recovered judgment against relator notwithstanding her claim of set-off, and she delay ed applying for a new trial until the time for taking out a writ of error had expired, and after a new trial was granted delayed bringing it on, there was no abuse of discretion in granting the petition of the receiver for his discharge and the satisfaction of his bond unless relator should pay the premium for the extension of the bond made necessary by her delay.</p> <p>3. Mandamus — Propriety—Remedy by Appeal.</p> <p>An order discharging a receiver and satisfying his bond, if effective to deprive a creditor of an action on the bond in the event of her obtaining a judgment against the receiver, can be reviewed upon appeal, whence mandamus will not lie to have it set aside.</p>

Assumpsit by Joel R. Gay against Fred O. Paige for services rendered. There was judgment for plaintiff, and defendant brings error.

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

<p>1. Divorce — Grounds—Cruelty — Compelling Abortion — Evidence — Sufficiency.</p> <p>On a bill for divorce on the ground of extreme cruelty in compelling complainant to submit to successive abortions, evidence examined, and held, sufficient to establish the charge set forth in the bill. Grant, Blair, and Ostrander, JJ., dissenting.</p> <p>2. Same.</p> <p>For a husband to insist upon his wife submitting to successive abortions, resulting in her leaving home rather than submit, is extreme cruelty entitling the wife to a divorce.</p> <p>3. Same — Defenses—Removal of 'Cause — Promises—Effect.</p> <p>A promise by the husband to waive his objections to her bearing children if she would resume her wifely relations comes too late after she has for a long time submitted to his wrongful conduct and she has left him a second time in consequence of his breach of a similar promise. Grant, Blair, and Ostrander, JJ., dissenting.</p>

Case by Edward Judd against the township of Caledonia for personal injuries. There was judgment for plaintiff, and defendant brings error.

<p>1. Taxation — Tax Sales — Decree—Entry in Vacation.</p> <p>That a decree for the sale of land for taxes was entered on the day after court adjourned until a later date in the term does not render it subject to collateral attack.</p> <p>2. Same — Treasurer’s Report of Sale — Filing in Clerk’s Office — Presumptions.</p> <p>Where a treasurer’s report of the sale of lands for taxes received in evidence bears an indorsement of filing signed by the county clerk, there is sufficient evidence that it was filed in the clerk’s office, there being a presumption that he only files papers in his own office.</p>

Case by Alfred Younggren against the I. Stephenson Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Garnishment proceedings by Mary B. L. Starr against Edgar B. Whitcomb as garnishee defendant of James Vaughan. There was an order quashing the proceedings, and plaintiff brings error.

Case by Fred W. Goodes, administrator of the estate of George W. Burton, deceased, against the Lansing & Suburban Traction Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.

Assumpsit by «Tosiah Griffin against the Marlette State Bank for money had and received. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.

Cross-appeals from Wayne; Mandell, J. Creditor’s bill and bill in aid of execution by Albert E. Bigelow and Charles A. Bigelow against Robert C. Sheehan, John L. Murphy, William H. White, James A. White, and Thomas White, copartners as William H. White & Company, and others. Defendants White filed an answer in the nature of a cross-bill for the specific performance of a contract with defendant Murphy.

Hillsdale; Chester, J. Bill by Henry L. Russell against Wilbur C. Russell and Roah L. Russell to set aside a deed on the ground of fraud and undue influence. From a decree for complainant, defendants appeal.

Bill by Henry Laúnstein against Oliver Launstein and David Winkler to enjoin the maintenance of a sluice in a highway, and to require the filling of certain drains. From a decree dismissing the bill, complainant appeals.

Petition by the board of directors of E. Bement’s Sons for the voluntary dissolution of said corporation: On petition of the Detroit Trust Company, receiver, a refer-©nee to a commissioner was made. Prom an order overruling exceptions • to the report of the commissioner, the State Bank of Michigan and the Old National Bank of Grand Rapids appeal.

Petition by the board of directors of E. Bement’s Sons for the voluntary dissolution of said corporation: On petition of the Detroit Trust Company, receiver, a reference to a commissioner was made. From an order overruling exceptions to the report of the commissioner, the Michigan Savings Bank appeals.

Case by Harry B. Perry against the Michigan Alkali Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Defendant operates 15 coke ovens which are situated upon an iron platform about 18 feet above the ground, are joined together in a row, and are 7 feet high.

Assumpsit by John A. Lindsley and Edwin M. Lindsley, copartners as J. A. Lindsley & Company, against Lydia A. Smith for goods sold and delivered. There was judgment for plaintiffs, and defendant brings error. The plaintiffs are copartners engaged in selling lumber by retail in the village of Dowagiac, Cass county. The defendant is a married woman, the wife of Leroy Smith, also a resident of said village of Dowagiac.

Case by William H. H. Bowen against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Plaintiff, while walking across Third street, on February 20, 1904, from the Wayne hotel, in the city of Detroit, towards the Michigan Central depot, slipped, fell, and was injured. There had been a rain. The weather suddenly becoming very cold, ice formed over the street, and it was very slippery.

Attachment proceedings in justice’s court by Julius Knack against Jacob Berlin and John C. Hartz. There was judgment for plaintiff, and defendants appealed to the circuit court by writ of certiorari. The judgment was sustained, and defendants bring error.

Bill by Mary H. Quackenbush and .Joseph P. Haffey, administrator of the estate of Nelson Gonyaw, deceased, against the Citizens’ Insurance Company of Missouri to reform the terms of a policy of insurance, and to compel its payment. From the decree rendered, defendant appeals.

), J. Bill by Kachel A. Babcock against Charles Babcock and Clarence Babcock to set aside a certain conveyance, and to enjoin the sale of property. From a decree for complainant, defendants appeal.

Case made from Wayne; Brooke, J. Assumpsit by J. Walter Drake against the International Harvester Company of America for services rendered. There was judgment for plaintiff, and defendant appeals.

Assumpsit by the People of the State of Michigan against the Crucible Steel Company of America for the amount of a statutory penalty. There was an order overruling a demurrer to the declaration, and defendant brings certiorari.

<p>Mandamus by Mary Witham to compel Kelly S. Searl, circuit judge of Clinton county, to vacate an order extending time for taking an appeal.</p>

Bill by the St. Helen Shooting club against Anson A. Barber and others to enjoin the entering, trespassing, and shooting game upon complainant’s property. From a decree dismissing the bill, complainant appeals.

Assumpsit by Leonard M. Neyens against John W. Worthington on a promissory note. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.

Forrest R. Danley presented for probate the last will and testament of Edwin B. Jefferson, deceased. The will was allowed in the probate court, and William W. Jefferson appealed to the circuit court. There was judgment for contestant on a verdict directed by the court, and proponent brings error.

, presiding. Debt by Allen B. Morse and Herbert B. Webber, receivers of the firm of Webber Brothers, against Nathan B. Hayes for the amount of a judgment. There was judgment for plaintiffs on a verdict directed by the court, and defendant brings error.

Bill by Frederick Osius against Frank B. Hinchman to enjoin defendant from entering into business contrary to the terms of a contract. From a decree for complainant, defendant appeals.

Bill by Gulielmus E. Owings, George W. Rowley, administrator of the estate of Fox W. Owings, deceased, and others, against Francis O. Owings for a partition and for an accounting. From a decree for complainants, defendant appeals. One Fox W. Owings died intestate in July, 1897, seised of a farm of 40 acres within the corporate limits of the city of Charlotte. Complainants and defendant are his sole heirs at law, Georgiana owning two-sixths and the others one-sixth each.

<p>Mandamus by the Peninsular Club of Grand Rapids to compel Willis B. Perkins, circuit judge of Kent county, to dismiss certain quo warranto proceedings.</p>

Assumpsit by the American Glue Company against Robert H. Rayburn and William H. Campbell, copartners as the Michigan Veneer Company, for goods sold and delivered. There was judgment for defendants, and plaintiff brings error. The plaintiff corporation is a manufacturer of glue. The defendants, copartners, are manufacturers of veneered panels used in the manufacture of furniture. They use a large amount of glue in fastening the veneers together.

<p>Injunction — Suit at Law — Grounds—Incompetent Plaintiff— Release.</p> <p>A bill alleging that defendant, for the purpose of cheating and defrauding complainant from having the benefit of a release, fraudulently procured a decree in the probate court appointing herself guardian of the releasor as an incompetent, and thereupon brought a suit at law upon the released claim, does not authorize an injunction against the prosecution of the suit at law, since the appointment of the guardian can have no effect upon the validity of the release.</p>

, presiding. Assumpsit by C. E. & G. W. Eddy against Horace Lamb and George R. Lamb, copartners as Horace Lamb & Co., for money had and received. There was judgment for defendants, and both parties bring error.

), J. Bill by Krescentzia Kundinger against Mary Kundinger, James A. Slocum, trustee, and others, for the specific performance of a contract. From an order overruling a demurrer to the bill, defendants appeal.

Bill by August Anglewicz and Rosa Anglewicz against Frank Freda and Augusta Freda to set aside a judgment of restitution. From a decree dismissing the bill, complainants appeal.

Bill by the Bridge Street & Allendale Gravel-Road Company to enjoin Frank D. Hogadone, highway commissioner of Walker township, from interfering with complainant’s corporate franchises. From a decree dismissing the bill, complainant appeals. The complainant was organized July 12, 1887, under the plank-road law, for the construction of a toll road, extending from Grand Rapids, a distance of nine miles, through Walker and Tallmadge townships, to Grand River.

, presiding. Bill by James A. Besson, highway and toll-road commissioner of the township of Green, against the Crapo Toll-Road Company to restrain the collection of tolls. From an order overruling a demurrer to the bill, defendant appeals.

Cross-appeals from Wayne; Brooke, J. Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen of the State of Michigan against Duncan C. Beath, Charles Neilands, and Sarah Neilands to determine title to the proceeds of a benefit certificate. From a decree awarding portions of the fund to defendants Beath and Sarah, and the balance to defendant Charles, defendants Charles and Sarah appeal.

Mandamus by the United States Gypsum Company and others to compel Willis B. Perkins, circuit judge of Kent county, to vacate an order setting aside certain condemnation proceedings.

Assumpsit by the people of the State of Michigan, for the use and benefit of Robert J. Davis, against Edwin M. Campfield and the Title Guaranty & Trust Company upon a statutory bond. There was judgment for plaintiff, and defendants bring error.

Sessions, J. Assumpsit by Mary M. Rice against the city of Muskegon for taxes paid under protest. There was judgment for plaintiff, and defendant brings error.

, presiding. Case by Byron E. Bartlett against George W. Jenkins for malicious prosecution. There was judgment for plaintiff, and defendant brings error.

Appeals from Calhoun; Hopkins, J. Bills by the Battle Creek Lumber Company against. Adrian A. Poland and others to enforce mechanics’ liens. From decrees for complainant, defendant Poland appeals.

Petition by James A. Scott against the city of Bay City for the allowance of a claim for services. There was an order allowing the claim in part, and respondent brings certiorari.

Case by Joshua Harker against the Detroit United Railway for injuries to plaintiff’s horses and wagon. There was judgment for plaintiff, and defendant brings error.