Volume 163 — Michigan Reports

<p>1. Criminal Law — Evidence—Opinion—Identification—Trial.</p> <p>Prejudicial error does not result from permitting a witness to give his opinion that a person whom he saw on the night the alleged crime was committed was respondent, and after-wards striking it out on discovering, from further examination, that he had no sufficient basis for the opinion.</p> <p>2. Same — Arson—Identity of Respondent.</p> <p>It was not error to submit the case to the jury under evidence that respondent, charged with arson, alighted from a car just before the fire, near the place of it, and that the conductor of the car knew her, and that she got on another car about, two hours later, and subsequently denied, to the sheriff, having alighted from the car at the point described.</p> <p>S. Same — Identity—Evidence.</p> <p>Identity is not necessarily to be proved by direct evidence, but may be established by circumstances pointing to one person.</p> <p>4. Same.</p> <p>That conflicting testimony as to the time of the fire was introduced, a part of which, given by respondent’s witnesses, tended to show that she could not have set the fire in the time which she had, did not require the direction of a verdict.</p> <p>5. Trial — Argument—Criminal Law — Arson.</p> <p>While it was reprehensible for the prosecuting attorney to state, in his argument, that it is common knowledge that people burn buildings for insurance, no prejudice can be held to have resulted, in view of the fact that the court instructed the jury to ignore the statement. Hooker, and Moore, JJ., dissenting from the conclusion that the argument was improper.</p> <p>6. Arson — Variance—Information.</p> <p>Although the information charged respondent with setting fire to three buildings, she might properly be convicted of the offense if the proofs showed that she set fire to one of them.</p> <p>7. Same — Identity—Evidence.</p> <p>Held that the testimony of the conductor of a car, who identified respondent, was for the jury.</p> <p>8. New Trial — Criminal Law — Verdict — Affidavits of Jurors.</p> <p>On motion for a new trial, in a prosecution for arson, affidavits of jurors showing that they considered the failure of respondent to take the stand as a witness, may not be received to impeach the verdict.</p> <p>9. Same — 'Weight of Evidence.</p> <p>Held that the weight of evidence did not require the granting of a new trial.</p>

Bill by the W. H. Hill Company against Gray & Worcester to enjoin the sale of certain drugs in violation of a trade agreement. From a decree dismissing the bill, complainant appeals.

Replevin by Tite Coeling against William Green and Edward N. Barnard. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Corporations — Stock and Stockholders — Sales—Restriction on Transfer.</p> <p>A proposed amendment to the articles of association of a corporation providing for the issuance of additional capital stock, to be known as option stock, to be issued to employés, subject to the right of the corporation to repurchase, it on specified terms, operates as an unlawful restraint upon the right of transfer, and is unauthorized by statute. Act No. 317, Pub. Acts 1905.</p>

Cross-appeals from Washtenaw; Kinne, J. Bill by Theodore E. Mast against George H. Purchase and others for an accounting. From the decree rendered, all parties appeal.

<p>Error to Wayne; Rohnert, J.</p> <p>Assumpsit by William P. Goodwin against the Union Insurance Company of Philadelphia on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error.</p>

Quo warranto proceedings by the people of the State of Michigan, on the relation of John E. Bird, attorney general, against Alfreda Maude Galbraith to try the right of respondent to the office of member of the board of registration of nurses.

Bill by the Ann Arbor Railroad Company and others against the Michigan Railroad Commission to enjoin the enforcement of certain rules. From an order sustaining a demurrer to the bill, complainants appeal.

Mandamus by the International Harvester Company of America to compel Clement Smith, circuit judge of Eaton county, to vacate an order requiring relator to produce certain books and papers.

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

Assumpsit by the Imperial Curtain Company against Ben. B. Jacob and Sol. Sallan, copartners as the Reliable Pawnbrokers, on a contract for advertising. A judgment for plaintiff on a verdict directed by the court is reviewed by defendants on writ of error.

Exceptions before judgment from Mecosta; Perkins, J., presiding. Benjamin Sharp was convicted of assault with intent to <do great bodily harm less than the crime of murder.

Bill by Effie Klotz against Willis Chatfield, drain commissioner, William Britton, treasurer, James B. Bradley, auditor general, and others, for the cancellation of a drain tax. From a decree for complainant, defendants appeal.

Case by Lewis J. Marshall against 'the Wabash Railroad Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.

Assumpsit by William T. Hosner against the village of Leonard for services rendered. A judgmént for plaintiff is reviewed by defendant on writ of error.

Assumpsit by the people of the State of Michigan, for the use and benefit of Lucy Wipfler, against Charles W. Wipfler and the Fidelity & Deposit Company of Maryland on a receiver’s bond. An order overruling a motion to quash the service of process upon defendant company is reviewed by it on writ of certiorari.

Bill by John L. Buell against the Menominee River Lumber Company, the Chicago, Milwaukee & St. Paul Railway Company, and William J. Turner to obtain the appointment of a successor to a deceased trustee, for the cancellation of certain deeds, and for an accounting. From a decree for defendants, complainant appeals.

Mandamus by Standart Brothers, Limited, to compel Howard Wiest, circuit judge of Ingham coifnty, to grant an order allowing relator to bring an action at law in the name of the receiver of an insolvent corporation.

Bill by George H. Nichols against Elizabeth Nichols for a divorce. Defendant filed an answer in the nature of a cross-bill asking affirmative relief. A decree was entered dismissing both the bill and the cross-bill, from which defendant appealed: On motion of defendant for an allowance for expenses pending the appeal.

Case by Christopher E. Kaiser against the Detroit United Railway for personal injuries: On motion to remand the record and permit appellant to apply for an extension of time to settle a bill of exceptions.

Assumpsit by Mary Lessnau against the Catholic Order of Foresters on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error. Defendant’s appeal is from a directed verdict and consequent judgment upon a mutual benefit policy. The defendant order — i. e., the supreme court — has its office in Chicago; local subordinate courts being established in many places.

<p>1. Mortgages — Deed as Security for Debt — Trusts — Evn DENCE.</p> <p>A deed absolute upon its face may be shown by parol evidence to have been executed as security for a loan from a third party not named in the conveyance; the grantee receiving the title in trust for the real mortgagee.</p> <p>2. Same — Trusts—Descent and Distribution — Real Property.</p> <p>Where it appeared that a collateral writing was executed by the parties to the deed, reciting the purpose of its execution and stipulating that if the premises conveyed should be sold to satisfy the debt, any balance remaining in the hands of the grantee should be paid to the grantor, or at his option, or in event of his death, to his widow, no trust in the property resulted in favor of the widow after the repayment of the loan by the heirs of the grantor, without a sale of the premises conveyed.</p> <p>S. Estates of Decedents — Advancements—Executors and Administrators.</p> <p>It is not an advancement for a parent to loan money to certain of his children and take their notes in payment.</p> <p>4. Same — Descent—Real Property — Advancements.</p> <p>Nor is the right of such children to take an interest in real property of their father impaired by their unpaid indebtedness to the estate, upon the notes.</p> <p>5. Same — Advancements—Evidence.</p> <p>Oral testimony is inadmissible to prove an advancement not evidenced by writing or a declaration of intent, as required by 3 Comp. Laws, § 9072.</p> <p>6. SAme.</p> <p>It is not permissible to adjust the indebtedness of a part of the children, so evidenced, to the estate, by depriving them of their legal estate in lands of the deceased and giving their interest to other heirs.</p>

<p>1. Fraud — Subscription to Corporate Stock — Representations op Third Person.</p> <p>While statements of fact, made by a person who was not acting for the defendant or associated with him as principal, are not a proper subject of comment in the opening statement of counsel, under a declaration for fraud of the defendant in inducing plaintiff to subscribe for corporate stock, such reference was not error when the statements referred to were shown on cross-examination by the defendant’s counsel, in sustaining his theory of the defense.</p> <p>2. Same — Subject-Matter.</p> <p>That the alleged representations related to a business owned by one who was not interested in the venture, would not affect plaintiff’s right to recover, where the corporation to which he subscribed projected the taking over of a part of such business, to which the representations related, and the defendant was to profit by the transaction.</p> <p>3. Same — Intent.</p> <p>Proof of oral representations similar in character to those alleged in the pleadings, made by defendant to third parties, was competent as having a tendency to show fraudulent in - tent.</p> <p>4. Same — Evidence.</p> <p>A letter written after plaintiff had concluded the agreement, having a tendency to negative the defense that the alleged untrue statements were inadvertently made, was admissible.</p> <p>5. Same — Value—Opinion Evidence.</p> <p>Opinion evidence was properly received to show the value of corporate stock that had no market value, and was not the subject of sale.</p> <p>6. Same — Reliance on Representations.</p> <p>Where it was claimed that defendant wrote a letter to an intermediary with whom plaintiff dealt, and that plaintiff read the letter and aoted in reliance on it, the question whether plaintiff had agreed to subscribe before he saw the letter was a material issue.</p> <p>7. Same.</p> <p>Whether or not defendant understood that the plaintiff had already subscribed for the stock was material in determining his intent in writing the letter which contained the false statements.</p> <p>8. Evidence — Correspondence.</p> <p>A witness was properly allowed to explain what he meant by-stating in a letter that he had agreed with plaintiff relative to the subscription.</p> <p>9. Damages — Fraud and Deceit — Stock.</p> <p>Instructions to the jury which permitted the jury to find, as damages, the difference between the actual value of the stock and the value it would have had if it had been as represented, not exceeding the amount paid for it, were not prejudicial to defendant’s rights.</p> <p>10. Same — Interest.</p> <p>Where money is obtained by fraud and deceit interest may be added as compensation.</p> <p>11. New Trial — Weight of Evidence.</p> <p>The denial of a new trial is held to be sufficiently supported by the weight of the evidence.</p>

, presiding. Walter Brott was convicted of breaking and entering in the nighttime, a store not adjoining to or occupied with a dwelling house, with intent to commit larceny.

<p>1. Pleading — Declaration—Joinder of Counts.</p> <p>The filing of a plea to a declaration for fraud waives the objection that certain counts alleged fraud against one defendant and other counts against two defendants.</p> <p>2. Same — Trial—Election.</p> <p>An election should be required on defendant’s motion to determine on which counts plaintiff would proceed.</p> <p>3. Same — Dismissal Against One Dependant — Election.</p> <p>Error in failing to require such election was cured by plaintiff’s dismissal, at the close of his testimony, of his case against one of the defendants, no bad faith being apparent.</p> <p>4. Same — Evidence—Fraud.</p> <p>Nor was the admission of testimony concerning representations made by the defendant as to whom the action was dismissed, prejudicial to the other defendant, in view of the charge of the court which withdrew that evidence from the consideration of the jury.</p> <p>5. Fraud — Stock Subscriptions.</p> <p>Where plaintiff subscribed to stock of a corporation because of alleged false representations contained in a letter from defendant to a promoter of the enterprise, and communicated to the plaintiff, representing falsely that the product to be manufactured had been earning 12 to 15 per cent, on a capitalization of $100,000, the letter was admissible in evideuce, although defendant claimed it was written for another purpose, and that the promoter was not authorized in using a single and material sentence, apart from its context, which, however, did not appear to qualify the effect of representations made.</p> <p>6. Same — Subsequent Statements.</p> <p>The repetition of the alleged fraudulent statements in a subsequent letter had a tendency to refute defendant’s claim that the representation was an inadvertence or mistake.</p> <p>7. Same — Evidence—Other Transactions.</p> <p>Evidence that the promoter, to whom defendant wrote the letter, used it to procure other subscriptions to stock of the corporation, was properly received to establish a fraudulent intent and the complicity of the promoter.</p> <p>8. Evidence — Value—Stock—Opinion Testimony.</p> <p>It was competent to show the value of stock in a project that failed, by the opinion of one of the interested investors who was familiar with the enterprise.</p> <p>9. Fraud — Stock—Damages.</p> <p>Plaintiff was entitled to recover for stock which he bought after his original subscription, where the evidence tended to show that it was treasury stock, although another party had promised to take it, and, without paying for it, indorsed the certificates over to plaintiff, who paid the amount to the managing stockholder.</p> <p>10. Evidence — Admissions.</p> <p>A conversation of a witness with defendant, which might, though not necessarily, tend to show a sense of obligation consistent with plaintiff’s claim, was competent evidence.</p> <p>11. Same — Hearsay—Corporate Reports.</p> <p>Reports of business of a corporation, not supported by sworn testimony as to their correctness, are hearsay.</p> <p>12. Same.</p> <p>The form in which defendant furnished information concerning the business of another corporation was not material.</p>

Assumpsit by Edward Hayes against the Wabasb Railroad Company for breach of a contract of carriage. A judgment for plaintiff is reviewed by defendant on writ of error.

<p>1. Criminal Law — Constitution — Trial by Jury — Directing Verdict.</p> <p>In a prosecution for a violation of the local-option act, it is an invasion of respondent’s constitutional right to a trial by jury for the court to instruct the jury that it is their duty to render a verdict of guilty, and, without permitting them to retire or deliberate, direct the clerk to take the verdict. People v. Doyle, 160 Mich. 433 (135 N. W. 358.)</p> <p>3. Intoxicating Liquors — Local-Option Act — Furnishing Liquors.</p> <p>Qucere: Does it constitute an unlawful furnishing of liquor, under the local-option law, for several persons in a county where the law is in force to contribute to a fund for the purchase of beer from a county where it may be sold, and to help themselves from the quantity purchased and held in common ?</p>

<p>1. Abatement and Revival — Criminal Law — Bastardy Pro- • OEEDINGS.</p> <p>Neither tinder the common law nor by the provisions of chapter 153, 2 Comp. Laws, does a proceeding for the maintenance of an illegitimate child survive after the death of the respondent.</p> <p>2. Same — Death.</p> <p>At common law the cause of action survived if the injury done affected property rights; if the wrong affected the person alone the action abated.</p>

Bill by Lucy Wipfler against Fred H. Warren, Charles R. Robertson, Ross A. Rastall, Detroit Pattern Works, Charles E. Wipfler and J. Louis Horn to obtain an accounting, a determination of the several claims of defendants, for a receiver and the dissolution of defendant corporation. From a decree for defendants, complainant appeals.

Exceptions before sentence from Grand Traverse; Mayne, J. Andrew Duffek was convicted of assault with intent to do great bodily harm, less than the crime of murder. The cause is here on exceptions before sentence. The material facts, briefly stated, are: Respondent was charged in the information with having made an assault with intent to kill and murder.

Edmund L. Cooper presented for probate an instrument purporting to be the last will of Sarah W, McMaster, deceased. An order was entered in probate court admitting the will to probate, and Arthur O. Harlow and Byron N. Harlow, heirs at law of deceased and legatees under the will, appealed the cause to the circuit court where a judgment was rendered disallowing the will. Proponent brings error.

Petition by the city of Detroit for the separation of grades of Sixteenth street and certain railroads crossing it. . A judgment for defendants dismissing the petition is reviewed by petitioner on writ of certiorari. Sixteenth street, in Detroit, is crossed, formerly at grade, by three railroads. Pursuant to the statute (2 Comp.

Case by Mary Ryerson against Emmet E. Phelps and the Michigan Bonding & Surety Company for the unlawful sale of intoxicating liquors to her husband. Judgment for plaintiff; defendants bring error.

Mandamus by William F. Hanold to compel the common council of the village of Stambaugh to revoke a liquor license and grant relator’s application to sell liquor at retail. An order denying the writ is reviewed by relator on writ of certiorari.

Proceedings by the Detroit Lumber Company to collect a demand against the auxiliary yacht <{ Petrel.” Prom a judgment for defendant, complainant appeals: On motion to dismiss.

Mandamus by Goodfellow Tire Company against Myrtle P. Hurlbut, commissioner of parks and boulevards of the city of Detroit, to compel him to issue a permit to relator to construct a driveway from Grand Boulevard east, to relator’s factory. An order denying the petition is reviewed by relator on writ of certiorari.

<p>Error to Van Burén; Des Yoignes, J.</p> <p>Case by George S. Lang against Eugene E. Prindle for fraud. Judgment for plaintiff; defendant brings er-xor.</p>

Bill by Domenico Pastorino and Louis Schiappacasse against Thomas W. Palmer and Friend Palmer for the reformation of a lease. From a decree dismissing the bill, complainants appeal.

Case by Elbert V. Ingersoll as administrator of the estate of William Quigley, deceased, against the Detroit & Mackinac Railway Company for the negligent killing of the deceased. A judgment for defendant entered by the court on the opening statement of plaintiff’s attorney is reviewed by plaintiff on writ of error.

<p>Error to Wayne; Hosmer, J.</p> <p>Case by Samuel Mintz against Ben B. Jacob for fraud. Judgment for defendant on motion to quash the writ. Plaintiff brings error.</p>

Submitted Case by Minnie Gehl, administratrix of the estate of Albert Gehl, deceased, for the negligent killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Ira B. Gage, executor of the estate of Nelson F. Choate, deceased, presented his final account in the probate court for the county of Cass. It was contested by his successor, Wilbur G. Bonine, administrator de bonis non. Both parties appealed from the order entered in probate court. A judgment of the circuit court was entered on appeal, charging the executor with the value of certain stock of deceased.

Case by Ludwig Krzyszke against Gustave Kamin, for the malicious prosecution of a civil action. Judgment for plaintiff, and. defendant brings error.

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by Charles Vollrath against Magdalena Vollrath for divorce. From a decree for complainant, defendant appeals.</p>

Case by Sarah J. Cummings against the Detroit United Railway for personal injuries. A judgment for defendant is reviewed by plaintiff on writ of error.

Bill by James Conley against Mary Sinclair and others to quiet title and remove a cloud from lands claimed by and in the possession of complainant. From a decree sustaining a demurrer to the bill, complainant appeals.

Bill by Anna S. Huían against William H. Shannon, Matilda Shannon, and John Huían for the specific enforcement of an oral agreement to convey land to complainant. From a decree dismissing the bill entered without requiring defendants to introduce evidence to sustain their defense, complainant appeals.

Assumpsit in justice’s court by Peter D. Pearce against Herbert Alward upon a special contract. Defendant obtained a judgment of' no cause of action, from which 'plaintiff appealed to the circuit court. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Assumpsit by Francis 0. Cunningham, Charles Christianson, Ellsworth S. Ellis and William M. Thomas, co-partners as the Nickel Plate Fence Company, against Otis Hawkins and Jane Hawkins on a bond. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.

Trover and case by Andrew Johnson against Charles J. Morrison for the conversion of logs. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Etta Riley against the Detroit United Railway. Judgment for defendant and plaintiff brings error: On motion to dismiss the writ of error.

Romeyn 0. Parsons was convicted before a justice of the peace of criminal slander. The conviction was affirmed on certiorari to the circuit court.

<p>Criminal Law — Burglary—Burglars’ Tools.</p> <p>In a prosecution for burglary, evidence was properly admitted showing that burglars’ tools and implements were found on three other persons with whom respondent was arrested on the night of the alleged crime, of which the three had been previously convicted.</p>

<p>1. Equity — Practice—Amending Decree.</p> <p>After the entry of a final decree in a suit for specific performance, and after discovering that the description of land affected by the proceedings was incorrect, a second order permitting the complainant to open the decree and insert an amended description as it might be determined by a survey, obviates the objection that the final order contained an incorrect description.</p> <p>2. Specific Performance — Oral Contracts.</p> <p>The decree of the circuit court granting specific performance of a contract, not in writing, to convey real property, is sustained as warranted by sufficient although conflicting evidence.</p>

Bill in chancery by Harriet Brown against Matilda Brown as administratrix of the estate of Harvey H. Brown, deceased, and others, to declare and enforce a trust. From a decree for defendants, complainant appeals.

<p>Error to Montcalm; Davis, J.</p> <p>Assumpsit in justice’s court by Lucian 0. Palmer against Peter Fagerlin and Fred W. Johnson. A judgment for plaintiff, on appeal to the circuit court, is reviewed by defendant Fagerlin on writ of error.</p>

<p>1. Criminal Law — Evidence—Admissions—Privileged Communications.</p> <p>A letter from one in jail, accused of a crime, written to his wife, containing incriminating admissions and obtained by prearrangement between the sheriff and an acquaintance of respondent who visited him in jail and promised respondent to deliver the communication to the wife, but turned it over to the sheriff, is not a privileged communication under 3 Comp. Laws, § 10213.</p> <p>2. Same — Confession.</p> <p>While a confession obtained by improper threats or promises that may lead the accused to think it is for his interest to make a confession, regardless of its truth or falsity, is inadmissible, the letter was not subject to such objection.</p>

Catherine McMorris, administratrix, presented to the probate court a petition for the construction of the will of Caspar Moor, deceased. From the order entered construing the instrument, Anna Nageli appealed to the circuit court. A judgment modifying the order of the probate court is reviewed by the administratrix on writ of certiorari.

. Information in the nature of quo warranto on the relation of Alexander Sutherland, prosecuting attorney, against Joseph C. Ford, Jr., to determine the right of respondent to the office of village trustee. Judgment for respondent, and relator brings error.

Bill by Hannah Mclnerny against Mary Jane Haase for the construction of the will of Denis Kelleher, deceased. From a decree sustaining the validity of the estates devised, complainant appeals.

Assumpsit in justice’s court by Eli Sachse against Samuel and Harry Helper and another for the price of goods sold. Plaintiff had judgment and defendants appealed to the circuit court. Judgment for plaintiff and defendants bring error.

Case by Lumus C. Newton, guardian of the estate of Ruth C. Newton and others, against the Detroit United Railway for damages to an automobile. Judgment for plaintiff; defendant brings error.

Bill by Elmore J. Bean and others against John C. Bean and others, to enjoin the use of an easement. From a'decree for complainants, defendants appeal.

Assumpsit by Despres, Bridges & Noel, a foreign corporation, against Antoni Zierleyn and Anthony B. Zierleyn for goods sold. Judgment for plaintiff and defendants bring error.

<p>1. Assignments — Payment—Debtor and Creditor — Evidence — Hearsay.</p> <p>Where a debtor delivered to his creditor an order on his employer to pay his wages to the creditor until further notice, and after the creditor had received a part of his claim, the debtor gave notice that he withdrew the order, and the creditor, learning of the attempted withdrawal of the assignment, notified the employer of the amount of his claim; evidence-was admissible to show conversation constituting the alleged assignment, which, it was claimed, included future earnings-up to the amount of plaintiff’s claim, although the defendant was not present at the time, and received no information concerning it except the notice.</p> <p>2. Same.</p> <p>While any payments made by the employer to the debtor before the notice were valid, he would be liable for amounts paid after he received notice of the extent of plaintiff’s claim under the assignment.</p>

<p>1. Boundaries — Line Fenoe — Settlement of Dispute.</p> <p>A line fence, maintained for more than forty years as a section line, cannot he held to have been built by agreement, as a boundary line, where there is no evidence that a dispute existed or a disagreement was settled when it was built.</p> <p>2. Same — Adverse Possession.</p> <p>Held that the facts did not establish adverse possession of the land in dispute.</p> <p>3. Same — Surveys—Ancient Monuments.</p> <p>A boundary will be considered established by a line fence which remained and was treated as the division fence between two parcels for forty years, by the adjoining proprietors, where the evidence showed that it was so treated by one private survey, and a later survey, showing a different location of the boundary, did not appear from the proofs to have been based on the finding of any original government monuments.</p>

Bill by Hattie Withey and others against Isaac Bloem, deputy factory inspector, and Richard H. Fletcher, commissioner of labor, to enjoin the enforcement of Act No. 285, Pub. Acts 1909. Prom a decree for complainants, defendants appeal.

Assumpsit by James B. Clow & Sons, a corporation, against the Dowagiac Gas Company, a Michigan corporation, for goods sold and delivered. Judgment for plaintiff and defendant brings error.

<p>Appeal from Van Burén; Des Voignes, J.</p> <p>Bill by Nathaniel E. Dillie and Mary E. Dillie against Edgar B. Longwell, Jessie Longwell, Thomas Welch and Rowena Welch to reform a deed and enjoin an action of ejectment. From a decree for complainants, defendants appeal.</p>

<p>Municipal Corporations — Licenses — Use of Streets — Ordinance — Detroit Charter.</p> <p>An ordinance of the city of Detroit, forbidding any person from engaging in the business of using vehicles to draw earth and other materials (chapter 54, Compiled Ordinances of Detroit, § 2), without first procuring a license, is authorized by paragraph 186 of the charter of the city of Detroit, regulating the use of vehicles for hire, and does not prohibit a firm, engaged in the business of furnishing building and paving supplies, from delivering its commodities, by its private wagons, without a license; since the ordinance effects a regulation of a business, rather than of the use of streets under the power conferred by paragraph 170 of the charter.</p>

<p>Appeal from St. Clair; Law, J.</p> <p>Bill of interpleader by Knights of the Modern Maccabees against Melinda Sharp and others. From a decree against Melinda Sharp, defendant, she appeals.</p>

Case by Theresa Y. Taylor against the Home Telephone Company for a negligent injury. A judgment for defendant on a verdict directed by the court, is reviewed by plaintiff on writ of error. It is alleged in the declaration that on July 29, 1907, the -defendant’s employés in making an excavation in an alley in the city of Detroit negligently removed a service cock from an 8-inch city water main carrying pressure, laid 41-feet under ground, which they had uncovered.

<p>Error to Wayne; Mandell, J.</p> <p>Case by John Krettnich against the Detroit Chemical Works for personal injuries. Judgment for plaintiff; defendant brings error.</p>

Case by George B. Daniels against the Detroit, Grand Haven & Milwaukee Railway Company, the Grand Trunk Western Railway Company, and the Grand Trunk Railway Company of Canada. The defendant, the Grand Trunk Western Railway Company, filed a motion to quash the service of plaintiff’s declaration. An order denying the motion is reviewed by said defendant on writ of certiorari.

Case by Alice L. Daniels against the Detroit, Grand Haven & Milwaukee Railway Company, the Grand Trunk Western Railway Company, and the Grand Trunk Railway Company of Canada. An order denying a motion to quash the service of process as to the Grand Trunk Railway Company of Canada is reviewed by said defendant on writ of certiorari.

Bill by Frank A. Maslen, executor of the estate of Andrew Anderson, deceased, to remove a cloud from the title to real property. From a decree for defendants, complainant appeals.

<p>Appeal from Hillsdale; Chester, J.</p> <p>Bill by Charles A. Shepard against Henry U. Schrutt and Levi Schrutt, in aid of an execution. From a judgment for complainant, defendants appeal.</p>

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by Martin J. Schwanz against Casimir Wujek for medical services and attendance. Judgment for plaintiff. Defendant brings error.</p>

Bill by George Hanselman against the Grand Trunk Western Railway Company, to restrain the construction of a siding. From a decree awarding a part of the relief prayed both parties appeal.

Mandamus by Jeremiah W. Boynton to compel Willis B. Perkins, one of the judges of the circuit court for the county of Kent, to vacate an order denying a motion to open relator’s default, and to vacate his default in an action at law. Preliminary writ allowed September 28, 1910.

William Davidson presented a claim against the estate of Jerome Gibson, deceased. It was disallowed by the commissioners on claims of said estate and claimant appealed to the circuit court. A judgment for defendant on a verdict directed by the court is reviewed by claimant on writ of error.

Exceptions before sentence from Berrien; Coolidge, J. Philip Yund was convicted of assault and battery on appeal from a conviction in justice’s court.

<p>Error to Ingham; Collingwood, J.</p> <p>William Gilbert was convicted of larceny and brings error.</p>

<p>Exceptions before sentence from Missaukee; Lamb, J.</p> <p>Abe Lowerie was convicted of being drunk upon a public street.</p>

Bill by Frank G. Cowley against John McGregor and William H. Gillespie, copartners as the Harrisville Milling Company, to redeem lands from a tax purchase. From a decree for complainant, defendants appeal.

, presiding. Case by Solomon Risku against the Iron Cliffs Company 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; Murfin, J.</p> <p>Bill to quiet title by Arthur D. Stansell against the American Radiator Company. From a decree dismissing complainant’s bill, he appeals.</p>

Case by Samuel Hosking against the Cleveland Iron Mining Company for personal injuries. A judgment for defendant on verdict directed by the court is reviewed by plaintiff on writ of error. Plaintiff, who had theretofore had no experience in iron mining, went to work for the defendant company on February 27, 1905. He worked as a stemmer or assistant for three weeks in various parts of the mine, after which he was given employment as a regular miner.

Mandamus by Marion G. Paul, prosecuting attorney of Benzie county, to compel Fred. S. Lamb, circuit judge, to set aside an order discharging respondent in a criminal case, and to proceed with his trial.

Assumpsit by Byron S. Osborne and the people of the State of Michigan against the Reading Central Telephone Company to recover a statutory penalty. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Benjamin McDonald and John Mason were convicted of the statutory offense of breaking and entering in the nighttime, an office not adjoining to or occupied with a dwelling house, with intent to commit larceny, and were sentenced to hard labor for a minimum period of seven years.

Carrie Linton presented a claim in probate court for the county of Calhoun, for the support and maintenance of the widow of John W. Howard, under trust provisions of his last will. Eugene Howard appealed from the allowance of the claimant’s account and claim to the circuit court. Judgment for claimant; contestant brings error.

Case by Sarah Yost against the Grand Trunk Railway Company, a foreign corporation, for negligent injuries to her infant son. Plaintiff obtained judgment in justice’s court, and defendant appealed to the circuit court. A judgment for defendant on verdict directed by the court is reviewed by plaintiff on writ of error.

Partition by Charles W. Ward against Willis C. Ward and other heirs of David Ward, deceased, and George K. Root, Willis C. Ward and Franklin B. Ward, executors and trustees of the estate of said deceased. From a decree on demurrer, dismissing complainant’s bill, he appeals.

<p>Appeal and Error — Saving Questions por Review — Trial bv Court — Findings op Fact and Law.</p> <p>In an action of ejectment tried by the court without a jury, requests for findings of fact and law, and exceptions to the conclusions reached, are necessary to a review of the errors assigned, although the judge renders an, oral decision and opinion on the trial relating to the questions involved. Circuit Court Rule 26.</p>

Bill by Charles W. Sager against Fred E. Hartshorn to determine the amount due on a certain mortgage, and to require defendant to indorse thereon certain alleged payments. From a decree granting a part of the relief prayed for, defendant appeals.

<p>Banks and Banking — Bills and Notes — Compromise—Authority oe Cashier — Principal and Agent.</p> <p>In an action upon a promissory note that the defendant claimed had been compromised by an agreement of plaintiff bank, through its cashier, to accept certain bonds in part payment, where the evidence showed that no direct authority was conferred by the board of directors upon the cashier to accept anything but cash in payment of obligations, and that the discount committee met frequently; that the officers of the bank were diligent, and no special authority could be implied from the course of dealing between the bank and its cashier, the court should have determined on the trial, as a matter of law, that the oashier had no authority to make the compromise.</p>

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by Elmira W. Cheyney against John Passmore Cheyney for divorce. From a decree dismissing the bill, complainant appeals.</p>

Case by John 0. Weadock against James H. Swart and William C. Swart for the loss of valuables at defendants’ hotel. A judgment for defendants on verdict directed by the court is reviewed by plaintiff on writ of error.

Case by George Howcroft against the Detroit United Bail way for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>1. Master and Servant — Warning and Instructing Servant —Chemicals.</p> <p>An employé working in caustic soda, who was injured by some of the chemical flying in his eye and burning it, was entitled to have the question submitted to the jury, whether or not the master should have warned and instructed him concerning the danger of being burned by the soda, where the evidence tended to show that the employé did not know of its dangerous properties and had not been advised by the employer concerning them.1</p> <p>2. Same — Risks Assumed — Common Knowledge.</p> <p>It cannot be said as a matter of law that it is common knowledge that caustic soda is dangerous and will destroy the sight.</p> <p>3. Same.</p> <p>Under testimony tending to show that the injured employé was an ignorant man, that although he had been employed by defendant nearly two months he had not frequently come in contact with caustic soda and did not know it would burn, the question whether or not he assumed the risk was a question of fact. ®</p>

Ejectment by Rosette I. Tuthill against Frank Katz and. Frederick Katz. A judgment for plaintiff on a verdict directed by the court is reviewed by defendants on writ of error.

Mandamus by Jennie Mincer to compel Morse Rohnert, one of the Wayne circuit judges, to set aside an order dismissing without prejudice a petition of relator to determine the amount of alimony to which she might be entitled in divorce proceedings.

<p>1. Trial — Conduct op Court — Improper Remarks — Witnesses.</p> <p>Prejudicial error is committed in a trial of a negligence case by the trial judge remarking in the presence of the jury that plaintiff’s views relative to faith healing were not religion and too “fakey,” and such remarks constituted improper comment on plaintiffs religious opinions.</p> <p>2. Same — Negligence — Carriers — Personal Injuries — Damages.</p> <p>It is the duty of the trial court to instruct the jury concerning the measure of damages in an action against a street railway company for negligent injuries to a passenger; and the requirement is not met by a charge that the damages were entirely for the determination of the jury.</p> <p>3. Same.</p> <p>Plaintiff was entitled to have a requested instruction given, that the amount of damages must be such sum as would make her whole or compensate her for such injuries as they might find she had suffered, or would suffer in the future, as a result of defendant’s negligence.</p>

<p>1. Fire — Negligence—Railroads—Question op Fact.</p> <p>In an action for negligently permitting fire to escape from defendant’s premises upon plaintiff’s farm in dry weather, destroying his property, plaintiff was entitled to take the verdict of the jury under evidence tending to show that a witness saw defendant’s employés burning ties and refuse on its property, just before the 1st or 2d of August, and the plaintiff’s property was destroyed when he next went by that way, a few days subsequently; and whether or not the witness was mistaken in the dates was a question of fact, where it appeared that the fire occurred on July 27th.</p> <p>2. Principal and Agent — Master and Servant — Fire.</p> <p>Sectionmen of a railroad company, who set fires in the course of their employment, in violation of the orders of the employer, and negligently permit fire to escape onto premises of another, render the company liable for their act.1</p>

Assumpsit by the H. J. Reedy Company, an Ohio corporation, against Basil C. Cameron and Frank N. Arbaugh, on a contract for the sale and installment, of an elevator. A judgment for plaintiff is reviewed by defendants on writ of error.

Bill by Charles W. Coon against Jennie Coon for divorce. Defendant filed a cross-bill praying for separate maintenance. From a decree granting defendant an absolute divorce, both parties appeal.

Bill by Catherine Stebe against Charles C. Stebe for divorce. From a decree for complainant, defendant appeals. On motion to dismiss the appeal, considered with argument on the merits.

, presiding. Bill by Hiram Moorman against Julia E. Moorman for divorce. Defendant filed a cross-bill and was awarded a divorce and alimony. From the award of alimony, defendant appeals.

Assumpsit by Ambrose 0. Hindman against Otto Fried-rich for rent due. From a judgment for defendant, plaintiff appealed to the circuit court. A judgment for plaintiff, on a trial by the court without a jury, is reviewed by defendant on writ of error.

Assumpsit by Milton S. Weaver against A. Linn Murray upon a contract to pay plaintiff a specified amount. A judgment for plaintiff is reviewed by defendant on writ of error.

Assumpsit by John Baars against the township of Laketon, for services rendered. Judgment for plaintiff and defendant brings error.

Bill by Louis Stubman by John Vyn, his next friend, against John Modrack, Mary Modrack, Louis Fischback, and Louis Fischback and William Thieleman, executors of the estate of Ulrika Luhm, deceased, to set aside certain deeds. From a decree dismissing the bill, complainant appeals.

<p>1. Insurance — Fraternal Beneficiary Associations — Exhaustion of Remedies within the Organization.</p> <p>A clause in a fraternal benefit insurance policy, providing that no action shall be maintained on the certificate until after. the proofs of death have been filed and passed upon by the board of directors, is a valid limitation, and is a condition precedent to the right of action.</p> <p>2. Same — Officers—Principal and Agent — Authority.</p> <p>Under the by-laws of a fraternal beneficiary society, prohibiting any officer or local camp official from waiving the provisions of a policy of insurance, and declaring that the clerk of a local camp is not the agent of the head camp, the clerk of a local camp could not waive the by-laws of the great camp, relating to the exhaustion of remedies within the order.</p> <p>3. Same — Waiver.</p> <p>It did not amount to a waiver of the condition precedent, that the clerk of a local camp told the plaintiff if she would pay a part of the amount received to her daughter-in-law, the claim would be allowed, when it appeared that she rejected the proposition and lost nothing in reliance on it.</p> <p>4. Same — Delay in Determination — Reasonable Time — ByLaws.</p> <p>The board of directors may not arbitrarily and indefinitely postpone action on a claim, and thereby defeat the beneficiary’s right of action, although the by-laws fix no time within which they shall act.</p> <p>5. Same-Reasonable Time.</p> <p>Nine months is not an unreasonable time for the board of directors to take in passing on a claim which they had-caused to be investigated and found reason to believe was invalid for breach of a condition in the insurance policy against the excessive use of intoxicating liquors.</p>

Assumpsit by A. Linn Murray against the Inner Shoe Tire Company on a promissory note. A judgment for plaintiff on a verdict directed by the court for an insufficient amount is reviewed by him on writ of error.

Mandamus by Frank H. Boos to compel Charles B. Scudder, president, and others, constituting the common, council of the village of Augusta, to approve a liquor bond. An order denying the writ is reviewed by relator-on writ of certiorari.

Bill by the Union Trust Company, as trustee, against the Electric Park Amusement Company, the Electric ■City Amusement Company, and the Detroit Trust Company, trustee, for the foreclosure of a trust mortgage. 'The Detroit Lumber Company was made defendant by the cross-bill of the defendants. From a decree for complainants, defendants and said Detroit Lumber Company appeal.