Volume 159 — Michigan Reports

Bill by Armour & Company against Arthur C. Bird, • State dairy and food commissioner, and others, to restrain defendants from interfering in the sale of sausage in the State. From a decree dismissing the bill, complainant appeals. Complainant is a corporation organized under the laws of the State of New Jersey, with headquarters in Chicago, Ill.

Bill by Joseph F. Weber against the city of Detroit and others to quiet title to land. From a decree for complainant, defendants appeal. The public alley in which is situated the pieces of land now in controversy is in a block of the city of Detroit bounded on the north by Gratiot avenue and Maple street, on the east by Rivard street, on the south by Sherman street, and on the west by Hastings street.

Bill by Melissa C. Menter against the First Baptist Church of Eaton Rapids to establish an easement by prescription. From a decree dismissing the bill, complainant appeals. The object of the bill of complaint in this case is to establish an easement, a private right of way, over the land of the defendant to the adjoining land of the complainant. The case was heard upon pleadings and proofs taken in open court. The judge viewed the premises and dismissed the bill.

Bill by Martin M. Andrews, guardian of the estate of Agnes C. Cole, against Mabel Lavery and Arthur Lavery to set aside a change of beneficiary in a policy of insurance. From a decree for complainant, defendant Mabel Lavery appeals. Agnes C. Cole, the ward of complainant, is the widow of Fred B. Cole, deceased, and defendant Mabel Lavery is his only child by a former marriage. These two are the sole heirs at law of the deceased.

Bill by Charles H. Kimmerle, trustee in bankruptcy of Frank W. Lyle and others, against the Dowagiac Gas Company and others for an accounting. From an order overruling a demurrer to the bill, defendant gas company appeals. Complainant is the trustee in bankruptcy of Frank W. Lyle, Ira B. Gage, and Leon R. Lyle, copartners under the firm name of Lyle, Gage & Co., and the said parties as individual bankrupts.

Case by Frank B. Oarnell against Joseph J. Halpin for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

.Assumpsit by the Bellows Falls Machine Company against the-Munising Paper Company, Limited, for goods sold and delivered. A judgment for defendant is reviewed by plaintiff on writ of error.

Assumpsit by Thomas Green against the Michigan United Railways Company for the amount of a judgment. An order overruling a demurrer to the declaration is reviewed by defendant on writ of certiorari. Plaintiff recovered a large judgment in one of the Federal courts of New York State against the Jackson & Suburban Traction Company.

Bill by Corydon E. Ainsworth and Frank Trempe against the Munoskong Hunting & Fishing Club to enjoin the interference with hunting wild fowl on navigable waters. From a decree for complainants, defendant appeals. A complete statement of the averments in the bill of complaint is found in 153 Mich. 185 (116 N. W. 992, 17 L. R. A. [N. S.] .1236, 126 Am. St. Rep. 474), when the case was before us upon demurrer, and the court below sustained the demurrer and dismissed the appeal.

Assumpsit by Louis Rosen against Aaron D. Rosen upon a contract for the sale of a partnership interest. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Bill by L. F. Andrews and others against George Osborn, Alice Sturtz, and others, to set aside a claim allowed against the estate of Jennie Charlton, deceased. From a decree dismissing the bill, complainants appeal..

, presiding. Case by Philip Stenzhorn against the City Electric Railway Company for personal' injuries. A judgment for plaintiff is reviewed by defendant on writ of error.

Petition by George W. Radford for a writ of certiorari to review an order overruling a demurrer to a petition for his disbarment as an attorney at law.

Bill by Massie W. Scovel and another against the city of Detroit and others to restrain a special assessment for the construction of sidewalks. From a decree dismissing the bill complainants appeal.

Assumpsit in justice’s court by Peter Swantek against Stephen Jarmoszka for work and labor. Plaintiff recovered judgment for an insufficient amount, and appealed to the circuit court. The defendant subsequently took out certiorari upon the justice’s judgment. An order granting a motion to dismiss the appeal is reviewed by plaintiff on writ of error.

Debt by the Crystal Ice Company, Limited, against the United Surety Company for the amount of a bond. A judgment for plaintiff is reviewed by defendant on writ of error.

William Look presented his final account as special administrator of the estate of Joseph Bender, deceased. From the account as allowed in the probate court, said administrator appealed to the circuit court. A judgment affirming the order of the probate court is reviewed by said administrator on writ of error.

Case by John A. Pierson against the Illinois Central Railroad Company for a wrongful ejection from defendant’s train. A judgment for defendant is reviewed by plaintiff on writ of error.

Bill by the Metropolitan Life Insurance Company against Louis Freedman, executor of the last will and testament of Jacob Freedman, deceased, for the cancellation of a policy of insurance, and to restrain an action at law. From a decree for complainant, defendant appeals.

Case by Arnold Courser, by next friend, against Homer Jackson for personal injuries. A judgment for defendant is reviewed by plaintiff on writ of error.

Assumpsit by Wladislaw Suchocki against the Calumet Insurance Company on a policy of insurance. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Assumpsit by Frederick W. Kuennan against the United States Fidelity & Guaranty Company and the National Construction Company on a statutory bond. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant the United States Fidelity & Guaranty Company on writ of error.

Replevin by the National Cash Register Company against Katie Richards and another. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

Assumpsit by the people of the State of Michigan, for the use and benefit of Alfred H. Kuenzel and Frederick W. Kuennan, against the National Construction Company, principal, and the United States Fidelity & Guaranty Company, surety, on a statutory bond. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.

<p>1. Fraud — Deceit—Expression oe Opinion.</p> <p>The expression of an opinion that the price of goods sold is cheaper than the buyer can procure them for elsewhere, does not constitute fraud although it is untrue.</p> <p>2. Sales — Contract—Breach—Damages.</p> <p>A purchaser of shrubbery who cancels the order after the . seller has dug up and set aside the property for him, is not liable for the entire purchase price, but for damages for the breach merely.</p>

<p>Attachment — Process—Constructive Service — Publication of Notice.</p> <p>Published notice of an action pending in attachment proceedings without personal service, is jurisdictionally defective as constructive service by reason of an incorrect designation of one of two joint defendants as “William H. Dunton” instead of “William H. Denton.”</p>

, presiding. Bill by Daniel McCall and others against Abram McCall and another to set aside certain deeds. From a decree for complainants, defendant Abram McCall appeals. One John H. McCall and his wife, Barbara, owned in their lifetime 160 acres of adjoining land, each owning 80 acres. The 80 acres belonging to the wife was the homestead. Complainants and defendants are their children. Two days before the mother died, she and her husband made a disposition of these lands.

Proceedings by the board of education of the city of Grand Rapids against William B. Brown and Mattie Brown to condemn certain land for school purposes. From a judgment for defendants, petitioner appeals.

Ejectment by John S. Fors, Jr., and another against John S. Fors, Sr., and another. A judgment for plaintiff is reviewed by defendants on writ of error.

Debt by Richard Carter against Frank C. Reaume. James H. Cody, Ralph B. Wilkinson, and others, for the amount of a land contract. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Herman Meilke against August Schabble for injuries to plaintiff’s colts caused by a vicious dog. A judgment for plaintiff is reviewed by defendant on writ of error.

Assumpsit by Richard W. Smith against the Provident Savings Life Assurance Society, principal defendant, and garnishment against the National Bank of Commerce of Detroit as garnishee. The defendant moved the court to quash the proceedings in the principal case. A judgment quashing the proceedings for want of jurisdiction is reviewed by plaintiff on writ of certiorari.

Cross-appeals from Wayne; Donovan, J. Bill by Daniel J. Campau against the National Film Company to restrain the use of leased premises contrary to the terms of the lease. From the decree rendered, both parties appeal.

Assumpsit by Thomas H. Watson against the E. E. Naugle Tie Company for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error.

Harm Weessies presented a claim against the estate of Harm Van Dyke, deceased, for services rendered. The claim was allowed in part by the commissioners, and Walter Hoek, executor, appealed to the circuit court.. A judgment for contestant on a verdict directed by the court is reviewed by claimant on writ of error.

<p>Error to Wexford; Chittenden, J.</p> <p>Norman B. Anderson was convicted of violating the local-option law.</p>

<p>Error to Lenawee; Chester, J.</p> <p>Assumpsit by Myrtle E. O’Toole against the Ohio German Eire Insurance Company on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error.</p>

<p>Mandamus by the American Telephone & Telegraph Company to compel Frederick C. Martindale, secretary of State, to issue a certificate of authority.</p>

Mandamus by W. A. Sturgeon & Company to compel the board of assessors and the common council of the city of Detroit to strike an assessment from the tax rolls. An order denying the writ is reviewed by relator on writ of certiorari.

Mandamus by Henry C. Klatt, administrator of the estate of Andrew Hollister, deceased, to compel Edgar O. Durfee, probate judge of Wayne county, to issue an order of sale. An order granting the writ is reviewed by respondent on writ of certiorari. The legislature, by Act No'. 121, Pub.

Assumpsit by Morris C. Baumgarth and Rudolph Baumgarth, copartners as Baumgarth Bros., against the Firemen’s Fund Insurance Company on a policy of insurance : On motion of defendant for the taxation of costs against plaintiff’s assignees.

<p>Mandamus by the Grand Rapids & Indiana Railroad Company to compel Frank Shepherd, circuit judge of Cheboygan county, to vacate an order denying a change of venue.</p>

Mandamus by Nicholas D. Zimmer to compel the board of supervisors of Bay county to convene and apportion the State and county taxes in accordance with the report of a committee on appeals acting under the provisions of Act No. 292, Pub. Acts 1909. An order denying the writ is reviewed by relator on writ of certiorari.

Mandamus by Edwin C. Robinson, assessor of the city of Muskegon, to compel John G-. Westover, chairman of the board of supervisors of Muskegon county, to designate a member of a committee on appeals under the provisions of Act No. 292, Pub. Acts 1909. An order granting the writ is reviewed by respondent on writ of certiorari.

Petition by the city of Detroit for separation of grades in a certain street. George P. Snyder and the Union Transfer & Storage Company intervened claiming damages. A judgment confirming the award of the jury is reviewed by petitioner on writ of error. '

Mandamus by Louis E. Stewart, prosecuting attorney of Calhoun county, to compel Walter H. North, circuit judge of Calhoun county, to set aside an order quashing an information: On motion for rehearing on the issuance of the writ.

Joseph; Yaple, J. Bill by Luther N. Ruch and William Ruch against Emma A. Ruch for the cancellation of a deed and the specific performance of a contract. From a decree for complainants, defendant appeals. Complainants are the children and sole heirs at law of Amos A. and Rosealtha Ruch, both deceased. Amos and Rosealtha were married in 1870. March 22, 1879, Rosealtha bought the W. i of the N. E. ¿, sec. 4, town 8 S., range 12 W., containing 80 acres.

<p>Appeal from Wayne; Mandell, J.</p> <p>Bill by Ella Orton against John Orton for a divorce. From a decree dismissing the bill, complainant appeals.</p>

Assumpsit by David W. Simons against the Diamond Match Company for breach of covenants in a deed. A judgment for plaintiff is reviewed by defendant on writ of error. The facts which are here stated are not disputed.

Case by Henry O. Northrup against the city of Pontiac for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.

<p>1. Trespass — Assault and Battery — Justification — Highways.</p> <p>In an action of trespass for throwing stones at the plaintiff and injuring him and for an assault with a shovel, the evidence showing that the plaintiff did hot get out of the rig in which he rode, it is not a justification that the plaintiff drove out of the beaten track upon that portion of the highway cultivated by the defendant.</p> <p>2. Same — Evidence — Character and Disposition — Quarrelsomeness.</p> <p>Where a party claims in defense to an action of trespass for an assault that he was afraid of the plaintiff, because of the latter’s reputation and quarrelsome disposition, it is error to exclude questions, on cross-examination of the defendant, which tend to show by specific instances his own disposition and reputation as to the same matters.</p> <p>3. Same — Self-Defense—Evidence of Malice.</p> <p>Testimony is improperly excluded which tends to show that the defendant bore ill will towards the plaintiff and his brother.</p> <p>4. Same — Evidence—Collateral Issues.</p> <p>A question by defendant’s attorney as to the defendant’s condition and appearance since the death of his son by drowning attempts to introduce improper evidence.</p> <p>5. Same — Highways—Assault and Battery.</p> <p>Error was committed by the trial judge in charging the jury, as requested by the defendant, that the owner of land along a highway is entitled to its use to the center, subject to the usual rights of travel by the public, under evidence which showed that the defendant was not attempting to eject plaintiff as a trespasser or to defend his premises against a trespass.</p> <p>6. Trial — Jury—Improper Conduct of Parties.</p> <p>Improper conduct of a party with the jury, known to the other party to the action during the trial and not brought to the attention of the trial judge by objection or otherwise, is not ground for a reversal.</p>

Trover by Lawrence Schultz against Ella R. Dennison. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Bill by Simon Frohlich against Laura M. Ashton, Abram Sapiro and others to enforce a mechanics’ lien. From the decree rendered, defendants Ashton and Sapiro appeal.

, presiding. Case by Mary F. West, administratrix of the estate of Charles L. West, deceased, against the Detroit United Railway for the negligent killing of plaintiff’s intestate. A judgment for plaintiff is reviewed by defendant on writ of error. On August 16, 1907, the day on which plaintiff’s decedent lost his life, defendant company operated a double-track street railway on Gratiot avenue, Detroit.

Case made from Cass; Des Voignes, J. Assumpsit by Charles E. Brown against Albert L. Warner for money had and received. A judgment for plaintiff is reviewed by defendant on a case made.

Case by Martin Rogers and another against George W. Parker for negligently allowing fire to escape upon plaintiff’s premises. A judgment for plaintiffs is reviewed by defendant on writ of error.

Assumpsit by the Providence Jewelry Company against Ed. M. Bailey for goods sold and delivered. A judgment for plaintiff for less than the amount claimed is reviewed by it on writ of error.

Bill by Jeanette Fisher Forbes against John J. Gor-. man and Walker & Company for an accounting. From a decree for complainant, defendant Gorman appeals.

Bill by Emmet H. Scott against Thomas G. Sullivan and others for the foreclosure of a mortgage. W. B. Blake and others intervened, claiming title by virtue of certain tax deeds. From a decree for complainant, said interveners appeal.

Case by George Schmidt against the Michigan Coal & Mining Company for personal injuries. A judgment for defendant on a verdict directed by the court, is reviewed by plaintiff on writ of error.

<p>Error to Wayne; Mandell, J.</p> <p>Trespass vi et armis by Anna M. Walsh against Fred Gibson. A judgment for defendant is reviewed by plaintiff on writ of error.</p>

Petition by Oramel B. Fuller, auditor general, against Lyman H. McCall for the sale of certain land delinquent for taxes. From a decree dismissing the petition, petitioner appeals.

Assumpsit by Cornelius E. E. Long against the village of Dundee for money had and received. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Bill by John W. Smith against Orris L. Barrett, highway commissioner of the township of Eaton Rapids, to enjoin the enlargement of a drain. From a decree dismissing the bill, complainant appeals.

Assumpsit by the city of Alpena, for the use and benefit of Herman Besser, against the Title Guaranty & Surety Company upon a statutory bond. A judgment for plaintiff, on a verdict directed by the court, is reviewed by defendant on writ of error.

Assumpsit by the city of Alpena, for the use and benefit of Michael O’Brien, against the Title Guaranty & Surety Company upon a statutory,bond. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Assumpsit by the city of Alpena, for the use and benefit of Thomas Beaudrie, Eugene H. Furbush, and others, against the Murray Company, principal, and the Title Guaranty & Surety Company, surety, upon a statutory bond. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant surety company on writ of error.

, presiding. Bill by William P. Nisbett and another against George W. Milner and others to redeem from a sale of land for taxes, and to quiet title. Prom a decree for defendants, complainants appeal. The bill of complaint in this cause was filed to establish and enforce the right of complainants to redeem, from a certain tax deed, dated September 5, 1901, given by the auditor general, to defendant George W. Milner.

, presiding. Assumpsit by Harriett Jewett, executrix of the last will and testament of Alpha Phelps, deceased, against Wallace Bryant, administrator of the estate of Samuel Bryant, deceased, on a promissory note. A judgment for plaintiff is reviewed by defendant on writ of error.

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

Jerome E. Nichols was convicted of statutory rape, and sentenced to imprisonment for not less than five nor more than fifteen years in the State prison at Jackson.

<p>Municipal Corporations — Boundaries — Repeal by Implication.</p> <p>The rule that a local board of supervisors may not change the boundaries of a municipality under Act No. 215, Pub. Acts 1895, 1 Comp. Laws, § 2974, where the legislature has intervened by special act and made such change, subsequent to the enactment of the general law, is not applicable to the change in the boundary of the city of Benton Harbor under the general law, in view of subsequent special acts of the legislature expressly providing that the general law should govern that municipality.</p>

Mandamus by Catherine McDonald to compel John W. Stone, circuit judge of Marquette county, to vacate an. order striking out portions of an answer to a petition in condemnation proceedings. The city of Negaunee filed a petition in the circuit court for the county of Marquette to condemn a piece of land belonging to the relator for the purposes of a public cemetery.

Case by Joseph Powers against James D. Houghton and John D. Haskins for malicious prosecution. A judgment for plaintiff is reviewed by defendants on writ of error.

Assumpsit by Frank S. Pratt, receiver of tbe Michigan Manufacturers’ Mutual Fire Insurance Company, against William M. Broadwell for the amount of an assessment on a policy of insurance. A judgment for defendant is reviewed by plaintiff on writ of error.

<p>Error to Saginaw; Gage (Chauncey H.), J.</p> <p>Replevin by John S. Weidman against John T. Phillips and Arthur W. Seeley, copartners as Phillips & Seeley. A judgment for plaintiff is reviewed by defendants on writ of error.</p>

Bill by Adelia M. Breen against William J. Breen for a divorce: On motion of complainant for an allowance of alimony for the purpose of defraying the expense of appealing from a decree dismissing the bill.

<p>Mandamus by William W. Murphy to compel Frank Emerick, circuit judge of Montmorency county, to dissolve a temporary injunction.</p>

<p>Mandamus by the Michigan United Railways Company' to compel Frank E. Knappen, circuit judge of Kalamazoo-county, to dissolve an injunction.</p>

Bill by Frederick Thoman and Jacob Stahl against Myron W. Mills and David Mills, executors of the last will and testament of Nelson Mills, deceased, and others, for an accounting. From a decree for complainants for nominal damages only, they appeal.

Case made from Kent; Sessions, J., presiding. John F. Wilkinson, deputy auditor general, appealed to the circuit court from an order of the probate court determining the amount of inheritance tax due the State from the estate of E. Crofton Fox, deceased. A judgment overruling the order of the probate court is reviewed by the estate upon a case made.

, presiding. Assumpsit by Mark Norris, trustee, and another against Austin McPadden for rent. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.

Bill by the Detroit Trust Company, trustee, against the Detroit, Flint & Saginaw Railway, the Praether Engineering Company, J. H. Kusell, trustee, and the Harrisburg Foundry & Machine Works for the foreclosure of a mortgage. Defendants Praether Engineering Company, J. H. Kusell, trustee, and the Harrisburg Foundry & Machine Works filed answers in the nature of cross-bills to enforce mechanics’ liens.

<p>1. Easements — Ways of Necessity.</p> <p>The owner of a forty acre tract which is cut off from the highway by another forty acre parcel which was at one time held by a common grantor, has a way of necessity across the intervening parcel to such highway.</p> <p>2. Same.</p> <p>That the owner of the servient estate offered to sell a right of way across other lands owned by him in no way affects the easement.</p> <p>3. Same — Statutes—Private Roads.</p> <p>Such owner of the easement is not required to resort to the condemnation of a private road under 2 Comp. Laws, § 4142, et seq.</p> <p>4. Same — Location op Way of Necessity.</p> <p>Where the owner of the servient tenement refused to locate a right of way and the holder of the dominant estate chose a way which was reasonable, the court of equity will protect his rights.</p> <p>5. Same — Extent of- User.</p> <p>One who claims a right of way by necessity over adjoining lands may make the way passable and is required to maintain necessary fences at either end and keep the road in repair.</p>

<p>1. Attachment — Sale by Sheriff — Sales—Contract Terminating Seller’s Lien.</p> <p>Trover lies for the conversion of lumber owned by the plaintiffs, seized in attachment against third parties, and sold by the sheriff without awaiting the levy of execution, the lumber having been transferred to plaintiffs by the purchasers who bought it subject to the terms of a contract which provided for a lien until notes of the purchasers were given; the evidence showing the execution of the' stipulated notes.</p> <p>3. Same — Affidavit—Parties.</p> <p>An affidavit in attachment which describes the defendants named as a copartnership, when, in fact, one of them is not a member of the firm, is not so defective as to deprive the court of jurisdiction. Moore, J., dissenting.</p>

<p>Mandamus by Mary H. Gaskill and others to compel James A. Parkinson, circuit judge of Jackson county, to order the issuance of an execution.</p>

), J. Edward W. Glynn presented for probate the last will and testament of Edward Corning, deceased. The will was allowed in the probate court, and Anna Corning appealed to the circuit court. A judgment for proponent is reviewed by contestant on writ of error.

Case by Thomas Morrill against the Detroit & Mackinac Railway Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.

, presiding. Hattie Mitchell presented a claim against the estate of Caiphas Dill, deceased, for an amount held in trust upon the foreclosure of certain mortgages. The claim was disallowed in the probate court, and claimant appealed to the circuit court. A judgment for claimant is reviewed by the administrator on writ of error.

<p>1. Divorce — Extreme Cruelty — Refusal to Cohabit.</p> <p>A complete refusal of a defendant to cohabit with her husband during a period of nearly three years constitutes extreme cruelty.</p> <p>2. Same — Collusion.</p> <p>No evidence of collusion warranting the court in denying a decree for divorce is presented by a showing that the husband consulted a lawyer concerning his right to a divorce .and his wife thereafter refused for about three years to perform her marital duties, or by the fact that the parties adjusted their property matters by an agreement of the husband to pay her alimony in a lump sum. Hooker, J., dissenting.</p>

Bill by Allaseba M.'Bliss and Lorenzo T. Durand, executors of the last will and testament of Aaron T. Bliss, deceased, against Carrie B. Tyler and Fred B. Tyler to set aside a deed, and for authority to sell said property under a fieri facias. From a decree overruling a demurrer to the bill, defendant Carrie B. Tyler appeals.

Mandamus by Allaseba M. Bliss and Lorenzo T. Du-rand, executors of the last will and testament of Aaron T. Bliss, deceased, to compel William R. Kendrick, circuit judge of Saginaw county, to vacate an order extending the time for taking an appeal.

Case by Adella M. Sisson against Theodore Lampert, principal, and Andrew Hill and Richard Havinga, sureties, and Robert W. Swayze, principal, and Vard S. Raymond and Henry W. Booth, sureties, under the civil-damage act. A judgment for plaintiff is reviewed by defendants on writ of error.

, presiding. Case by Anna Baessler against Frank Foster, principal, and Albert Brandt and John H. Canavan, sureties, under the civil-damage act. A judgment for plaintiff is reviewed by defendants on writ of error.

<p>Exceptions before judgment from Hillsdale; Chester, J.</p> <p>Dennis Williams was convicted of larceny.</p>

<p>Exceptions before judgment from Barry; Smith, J.</p> <p>Homer Giddings was convicted of violating the local-option law.</p>

<p>Exceptions before judgment from Ingham; Wiest, J.</p> <p>Frank P. Glazier was convicted of embezzlement.</p>

Clair; Law, J. Lawrence O’Neil, administrator, presented for probate the last will and testament of Thomas Kennedy, deceased. The will was allowed in the probate court, and James J. Kennedy and others appealed to the circuit court. A judgment for proponent on a verdict directed by the court is reviewed by contestants on writ of error.

Case by Anthony De Boer against William F. Adams for malicious prosecution. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Mandamus by the Brown & Brown Coal Company to compel the Grand Trunk Railway System to forward certain freight without the prepayment of charges. An order denying the writ is reviewed by relator on writ of certiorari.

<p>Error to superior court of Grand Rapids; Stuart, J.</p> <p>Trespass on the case by Lena B. McCausey against George Hoek. A judgment for plaintiff is reviewed by defendant on writ of error.</p>

Mandamus by the Michigan railroad commission to compel the Michigan Central Railroad Company and others to put in force an order fixing certain excess baggage rates.

<p>1. Sales — Conditional Sale — Consignment—Eeplevin by Consignor — Estoppel.</p> <p>Under an agreement which provided that the consignee of the plaintiff’s pianos might sell for cash or to responsible purchasers on credit, reserving a lien, no title passed to a purchaser who paid no cash but exchanged other property for the piano, in the absence of evidence tending to show that plaintiff is estopped to recover the property.</p> <p>2. Same — Title.</p> <p>Possession of personalty is merely prima facie evidence of ownership.</p> <p>3. Same — Customs and Usages — Principal and Agent.</p> <p>The terms of a contract which clearly and explicitly give the consignee of a piano authority to sell, may not be extended by proof of a custom of piano dealers to make exchanges.</p>

Bill by the Grand Trunk Railway Company of Canada against Anson E. Wolcott and John P. Wolcott, co-partners as Wolcott Bros., to restrain an action at law, and for the reformation of a contract. From a decree for complainant, defendants appeal. The bill is filed to restrain proceedings at law, to reform a written instrument, and for general relief.

Assumpsit by Lizzie S. Dennis against the Fidelity Mutual Life Insurance Company on a policy of insurance. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Henrietta I. Reese against the Detroit United Railway for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.

<p>Mandamus by Anna Stella Huían to compel James O. Murfin, circuit judge of Wayne county, to vacate certain provisions in an order granting an appeal.</p>

Mandamus by Ezra J. Boucha to compel Joseph H. Steerei circuit judge of Alger county, to vacate an order denying a petition to file an information in quo warranto proceedings.

<p>Mandamus by Mark W. Allen and others to compel James O. Murfin, circuit judge of Wayne county, to vacate an order denying a writ of injunction.</p>

<p>Mandamus — Husband and Wipe — Division op Property — Divorce — Appeal and Error.</p> <p>An order in divorce proceedings awarding to the wife possession of certain furniture will not be set aside in mandamus when it does not appear tobe unjust and the legal right to the possession under the order is reviewable on appeal, as from a final order.</p>

Bill by Eugene D. Allen and others against George B. Pulfer and Mentor Wetzstein, individually and as trustees, the Ideal Concrete Machinery Company, and the Architectural Mold Company to set asidej certain articles of incorporation on the ground of fraud. From a decree for complainants, defendants, except the Architectural Mold Company, appeal.

Case by Paul Zoltovski, by next friend, against Francis Gzella for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Barbara Delor against Joseph Delor for a divorce. From a decree for complainant, defendant appeals.</p>

<p>Habeas corpus proceedings by John Bolden to procure his discharge from the State prison at Jackson.</p>

Assumpsit by Charles B. Benham against Alonzo Ferris for commissions on. the sale of real estate. A judgment for plaintiff is reviewed by defendant on writ of error. Plaintiff sued defendant, a nonresident of the county, in justice’s court, employing the writs of attachment and of garnishment.

Replevin by Tite Coeling against Edward N. Barnard and another: On motion of plaintiff for leave to file a bond to stay proceedings pending an appeal to the Supreme Court.

Mandamus by the Franklin Life Insurance Company, the Federal Life Insurance Company, and the United States Annuity & Life Insurance Company to compel James V. Barry, commissioner of insurance, to vacate an order disapproving certain policy forms.

<p>Mandamus by Effie Klotz to compel John L. O’Mealey, circuit judge of Lenawee county, to vacate an order extending the time to take an appeal.</p>

Case by John Moyer against the Ann Arbor Railroad Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Assumpsit by the Kalamazoo Trust Company, trustee in bankruptcy, against David L. Merrill on certain promissory notes. A judgment for plaintiff is reviewed by defendant on writ of error.

Ejectment by Paul B. Moody, executor of the last will and testament of John B. Sutton, deceased, against John B. Macomber. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error. Plaintiff herein brings ejectment against defendant to recover possession of a farm.. It appears that prior to August 12, 1885, plaintiff’s decedent was the owner in fee simple of the premises described.

Bill by Eunice Bull against Josephine Hep worth for the cancellation of a note and mortgage for fraudulent representations. From a decree dismissing the bill, complainant appeals. Cornelius Terwilliger owned a farm of 80 acres in Cass county, upon which, he resided for a number of years, and up to the time of his death, which occurred November 18, 1907. He had no children, and died intestate. His wife had died several years earlier.

Mandamus by August Oblaser to compel Henry A. Mandell, circuit judge of Wayne county, to vacate an order denying a motion for an amended return by an examining magistrate.

Assumpsit in justice’s court by the Adams & Ford Company against Michael J. Cullen for goods sold and delivered. There was judgment for plaintiff, and defendant appealed to the circuit court by writ of certiorari. A judgment for plaintiff is reviewed by defendant on writ of error.

Assumpsit by John H. Dull, trustee, against the Royal Insurance Company on a policy of insurance. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error. Plaintiff sues in assumpsit to recover on a tornado insurance policy, issued by defendant to one Pfuntner, June 15, 1907.

<p>1. Fraudulent Conveyances — Bill of Sale as Mortgage.</p> <p>In an action of replevin, a plaintiff corporation, which claims title to a stock of goods under a bill of sale executed by one of its customers, a hotel keeper, in the business of selling intoxicating liquors, and which is shown by evidence in the case to have taken the conveyance as security for a debt, leaving the property in the possession of the grantor, without recording its evidence of title in the office of the township clerk, is properly denied the right to recover the goods as against an officer who levied thereon in behalf of a judgment creditor of the hotel keeper, since the evidence tends to support the contention of defendant that the property was transferred in fraud of the creditors, and the transaction was presumptively fraudulent under 3 Comp. Laws, §§ 9520, 9521.</p> <p>H. Same — Trial—Conduct of Court — Appeal and Error.</p> <p>The action of the trial judge in asking of a witness who advised the landlord as to his exemptions and who had also acted as attorney for plaintiff, as to his theory of the right to exemptions, was not prejudicial, in view of the charge which instructed the jury that the acts of such witness were not binding on the plaintiff except to show the acts done by them in conjunction.</p> <p>3. Same — Executions—Right of Owner.</p> <p>The plaintiff’s right to a judgment, in an action of replevin involving its title to the property, could not be affected by the defendant’s omission to prove that the costs for which the execution was issued were properly taxed.</p> <p>4. Trial — Conduct of Counsel — Cross-Examination.</p> <p>In cases which involve the good faith of a party, the extent of cross-examination bearing on the question is discretionary.</p> <p>5. Same — Cross-Examination—Collateral Matters.</p> <p>Inquiries as to immaterial matters, which are answered favorably to the appellant and not objected to at the time or presented on motion for a new trial, do not constitute reversible error.</p>

Case by Eino Kaukola against the Oliver Iron Mining Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.