Volume 164 — Michigan Reports

Exceptions before sentence from Calhoun; North, J. . Floyd Trine was convicted of breaking and entering in the nighttime, a store, not adjoining to or occupied with a dwelling house.

Samuel R. Du Bois and Frank North offered for probate the will of Isaac Du Bois, deceased. From an order of the probate court admitting the instrument to probate, George H. Du Bois and Mary E. Lewis, contestants, appealed to the circuit court. A judgment sustaining the validity of the will is reviewed by contestants on writ of error.

Bill by Charles B. Cross against Albert E. Griffin and Lucy Griffin, for specific performance of a land contract. From a decree dismissing the bill, complainant appeals.

Assumpsit in justice’s court by Frederick Yolli against Frederick Wirth, for money loaned. Defendant appealed to the circuit court. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error. This action was begun in justice’s court, where the plaintiff declared, orally, upon the common counts in assumpsit and filed a bill of particulars, the last item of which was money delivered to defendant December 11, 1898.

Case by William Cusick against Asa M. Kinney for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Clara May against Seneca C. Wilson for se- duction under a promise of marriage. A judgment for defendant on a verdict directed by the court, is reviewed by plaintiff on writ of error.

Bill by Ella Holley against John F. Bedinger and William Horton to enjoin garnishment proceedings and have her rights of exemption determined. From a decree for complainant, defendant appeals.

Mandamus by John C. Hartz against James O. Mur fin, circuit judge of Wayne county, to compel the respondent to vacate an order dismissing a writ of certiorari and to quash certain proceedings of Berton D. Brown, highway commissioner, to open a highway.

Assumpsit by Arthur F. McIntire against Henry W. Carr, for breach of contract. A judgment for defendant upon a motion and objection to the introduction of evidence under the pleadings, is reviewed by the plaintiff on writ of error.

Case by William Ralph, by Tillie Ralph, his next friend, against the Gies-Gear Company for personal injuries. A judgment for an alleged insufficient amount is reviewed by plaintiff on writ of error.

<p>Case by William Hartley against Frank P. Miller for negligence. On motion by defendant and appellee to dismiss a case-made.</p>

Bill by the Grand Union Tea Company against Charles Dodds for an injunction and other relief. From a decree for complainant, defendant appeals.

Case by Christopher E. Kaiser against the Detroit United Railway. On motion to remand the record to incorporate plaintiff’s amendments to the bill of exceptions.

Assumpsit in justice’s court by Yuille-Miller Company against the Chicago, Indianapolis & Louisville Railway Company, for failure to carry and deliver a car load of plums. A judgment for defendant directed by the court on appeal to the circuit, is reviewed by plaintiff on writ of error.

Case by John Konieczny, administrator of the estate of Eufrozyna Konieczny, against the Detroit & Mackinac Railway Company for the alleged negligent death of his intestate. A judgment for defendant is reviewed by plaintiff on writ of error.

<p>Appeal from Wayne; Murfin, J.</p> <p>Bill by the Restrick Lumber Company against Frank Wyrembolski, Joseph P. Kaiser, and Frank Schmidt, to enforce a mechanic’s lien. From a decree for defendants* complainant appeals.</p>

Ejectment by the Clairview Park Improvement Company of Grosse Pointe, Limited, against the Detroit & Lake St. Clair Railway and the Detroit United Railway. A judgment for plaintiff for a part of the premises claimed is reviewed by plaintiff on writ of error. On motion to dismiss, heard at the hearing on the merits.

Assumpsit in justice’s court by tbe A. M. Campau Realty Company against Robert A. Lenbardt, administrator of tbe estate of Robert Scbillinger, deceased, and Fred Scbillinger, upon a written guaranty. Plaintiff appealed to tbe circuit court from a judgment for an insufficient amount. A judgment for plaintiff on a verdict directed by tbe court is reviewed by defendants on writ of error.

Bill to quiet title by Samuel Mitchell and others against the Arctic Iron Company and others. Thomas Pellow and others, as trustees of the will of Samuel Mitchell, deceased, were substituted as parties complainant in the stead of Samuel Mitchell. From a decree for defendants, complainants appeal.

Assumpsit in justice’s court by the Brown & Brown Coal Company, a corporation, against Stanislaus Antezak. From a judgment for plaintiff, defendant appealed to the circuit court, where plaintiff asked for judgment against the surety upon defendant’s appeal bond; defendant’s liability having been discharged by an adjudication of bankruptcy. A judgment for defendant surety is reviewed by plaintiff on writ of error.

, presiding. Bill by Bridget McGraw, by George I. Lister, her guardian, against Bridget Muma, to set aside two deeds. •From a decree for complainant, defendant appeals.

Quo warranto in the Supreme Court by the people of the State of Michigan on the relation of John E. Bird, attorney general, against the Grand Rapids-Muskegon Power Company, to test the right of respondent to maintain a dam in the Muskegon river.

<p>1. Mechanics’ Liens — Subcontractor—Estoppel—Guaranty.</p> <p>By guaranteeing the performance of a building contract, a subcontractor estops himself from claiming a mechanics’ lien upon the building which was abandoned by the contractor and constructed by the owner.</p> <p>2. Same — Computation oe Liens — Cost oe Building.</p> <p>In computing the percentage to which each of the lienors is-entitled, the unpaid bills for labor and materials for which no liens have been filed or, if filed, abandoned, should not be-</p> <p>included in estimating the cost of the building which is abandoned by a contractor and completed by the owner; if they file and prosecute liens their claims must be considered, but if they choose to rely on the contractor for payment, the bills should be disregarded. Opinion in Frohlieh v. Ashton, 159 Mich. 265 (123 N. W. 1130), modified on rehearing.</p> <p>Moore, J., dissenting.</p>

, presiding. Case by Carlo Barto, as administrator of tbe estate of Francis Kopovics, deceased, against tbe Detroit Iron & Steel Company. Judgment for plaintiff; defendant brings error.

<p>Insurance — Fire Insurance — Michigan Standard Policy — ' Cancellation.</p> <p>Under the provisions of fa Michigan standard fire insurance policy, permitting the insurer to cancel the contract on five days’ notice, the pro rata part of the premium paid to be returned on surrender of the policy, a notice of cancellation by the insurer to insured terminates the obligation after the specified time, without any tender of the unearned premium.</p>

Mandamus by John E. Bird, attorney general, on the relation of Benjamin F. Graves, against the mayor and common council of the city of Adrian, to require the appropriation of necessary expenses for a charter commission. A denial of the writ is reviewed by relator on certiorari.

<p>1. Constitutional Law — Due Process of Law.</p> <p>The constitutional guaranty that no.' person shall be deprived of life, liberty or property, without due process of law, preserves to the people rights which were enjoyed under the common law, and guarantees such exercise of governmental power as is sanctioned by settled maxims of law, under such safeguards for the protection of individual rights as those maxims prescribe.</p> <p>2. Same — Departments op Government — Prosecuting Attorney.</p> <p>The preparation for and conduct of criminal proceedings by the prosecuting attorney are acts executive and administrative in character.</p> <p>3. Same.</p> <p>The prosecuting attorney is a constitutional officer whose executive duties may not be conferred by the legislature on the judiciary.</p> <p>4. Same — Statutes—Expert and Opinion Evidence — Criminal Law.</p> <p>Section 3 of Act No. 175, Pub. Acts 1905, providing for the appointment of expert witnesses by the court in cases of homicide, is unconstitutional, since the act of appointment is in no sense a judicial act, is carried out without notice to respondent or the prosecuting attorney, since the names of the witnesses are not indorsed on the information, and the accused is prevented from knowing the names of witnesses who will testify against him, and since the experts receive a certificate of candor, ability, and truthfulness not given to any other witnesses in the case.</p>

<p>Exceptions before sentence from Clinton; Searl, J.</p> <p>Frank Slater was convicted of violating the local-option law.</p>

George O. Shattuck presented a claim against the estate of Emma Reidy, deceased, which was disallowed by the commissioners on claims. Claimant appealed to the circuit court where judgment was rendered for claimant. John A. Watson, administrator of said estate, brings error.

Case by Emma Wendt against the village of Richmond for negligent maintenance of a defective drainage system. Judgment for plaintiff. Defendant brings error.

<p>Appeal from Calhoun; North, J.</p> <p>Bill by Alfred Shepard against Freedom G. Shepard for an accounting. From a decree for complainant, defendant appeals.</p>

Bill by Charles A. Morrison and Dayton W. Closser against Barbara Semer to remove a cloud from the title of certain lands. From a decree awarding to complainants less than the relief claimed, they appeal.

Foreclosure proceedings by the Commercial National Bank against Josephine Gaukler. From a decree for complainant, defendant appeals. On motion of appellant for leave to file an appeal bond as of the date of appeal and for a stay of proceedings.

Case by John P. Barnes against Chauncey Tibbitts for the alienation of the affections of plaintiff’s wife. Judgment for defendant. Plaintiff brings error.

Bill by the Central Bitulithic Paving Company against the village of Highland Park, to restrain defendant from interfering with the performance of a contract for a public improvement. Prom a decree granting defendant affirmative relief and declaring the contract invalid, complainant appeals.

Mandamus by John C. Hartz against James O. Murfin, one of the circuit judges of Wayne county, to vacate an order dismissing an appeal from proceedings of the township board of Plymouth to establish a highway, to reinstate said appeal, and to proceed to consider it.

Case-made from Saginaw; Gage, J. Assumpsit by the Consolidated Coal Company, a foreign corporation, against the board of trustees of the Michigan Employment Institution for the Blind, for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error. Act No. 107 of the Public Acts of 1873 (3 Comp.

Case by Rufus A. Willard against the city of Detroit for negligence. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Ruth. Johnson, by Christ Johnson, her next friend, for personal injuries. Judgment for plaintiff. Defendant brings error. Defendant operated an electric lighting plant, by means of which it furnished electricity for both public and private lighting. As a part of its equipment, it maintained a row of poles on South Raymond street in Bay City, upon which wires were strung, carrying an electric current of 2,200 volts.

Case by Resom M. Painter and Samuel L. Wilgus against the Lebanon Land Company for fraud. A judg. ment for plaintiffs is reviewed.^ by defendant on writ of error.

George E. Sharrar was convicted of violating the local-option law, and sentenced to pay a fine of $50 and to imprisonment for 20 days in the county jail.

Assumpsit by the Detroit Lumber Company, a corporation, against Rose Cleff. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Replevin by James Gow and John Campbell, copartners as Gow & Campbell against J. Marvin McFarren. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.

<p>1. Master and Servant — Warning and Instructing Servant-Proximate Cause.</p> <p>In an action by a lineman of an electric power company, for injuries received by coming in contact with high tension wires which he was not informed were charged, a failure to instruct plaintiff how to handle live wires was not a ground for recovery, under testimony showing that plaintiff was not handling or attempting to handle live wires at the time he was injured.</p> <p>2. Same — Negligence—Promise to Warn — Fellow-Servant— Risks- Assumed.</p> <p>Where the employé of defendant, superintending the gang in which plaintiff was employed, promised, at the time of hiring plaintiff, to warn him when he should begin to work among dangerous wires, the promise was within the scope of the authority of the superintendent who had authority to hire men, and created a duty of defendant which could not be delegated, and negligence in omitting to give the promised warning was not the negligence of a fellow-servant. Hooker, J., dissenting.</p> <p>3. Same —Duties op Master — Promise to Warn — Assumption op Risk.</p> <p>But it was error to charge the jury that a duty existed to give such warning independent of the superintendent’s promise to advise plaintiff of the danger.</p>

Case by Selma Larsen, administratrix of the estate of Simon Larsen, deceased, against the Home Telephone Company of Detroit and the Electric Construction Company, a foreign corporation, for the negligent killing of deceased. Judgment for plaintiff. Defendants bring error.

Case by Walter Dingman against the Duluth, South Shore & Atlantic Railway Company, for the unlawful discrimination against plaintiff’s business. A judgment sustaining a demurrer to plaintiff’s declaration is reviewed by plaintiff on writ of error.

<p>1. Taxation —Assessment—Forest Products —Logs and Logging-Ownership.</p> <p>Under Act No. 32, Pub. Acts 1899, logs on a loading ground, rented for the purpose of piling and loading the logs on cars, are assessable to the lessee, whether or not the sale of the property to him was fully executed.</p> <p>3. Replevin — Taxation—Warrant.</p> <p>Replevin does not lie for personal property taken by a township treasurer under a tax warrant, fair on its face, and valid for a portion of the taxes assessed. 3 Gomp. Laws, § 10651.</p>

Bill by Eben S. Wheeler against the city of Sault Ste. Marie for the specific enforcement of a contract. From a decree dismissing the bill of complaint on demurrer, complainant appeals.

Case by Charles Putnam against the Detroit United Railway for damages to his automobile and for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Replevin by James H. Garrison against the Union Trust Company, special administrator of the estate of Kit-tie Levering, deceased, for a diamond ring. Judgment for plaintiff. Defendant brings error.

<p>Error to Wayne; Hosmer, J.</p> <p>Assumpsit by Jennie H. Markey and A. Ottilie Comfort, against the Mutual Benefit Life Insurance Company, of Newark, New Jersey. Judgment for defendant. Plaintiff brings error.</p>

Error. to Lapeer; Smith, J. Case by Mary Hink against Robert F. Sherman, principal, and David Willis and Jesse Cypher, as sureties on a liquor bond, for the unlawful sale of intoxicating liquor to plaintiff’s minor son. Judgment for plaintiff of $500. Defendant brings error.

Case by John Lukovski against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error. This is an action for personal injuries sustained by plaintiff while an employé of defendant company at Vanderbilt. It appears that defendant maintains at that place a coal dock, from which, as required, engines upon that portion of its lines receive coal.

, sitting in banc. Mandamus by Franz Kuhn, attorney general, on the relation of Joseph L. Hudson, George H. Barbour, Russell A. Alger, Jr., Charles A. Ducharme, Fred T. Moran and Henry B. Joy, against the common council of the city of Detroit, to restrain the submission of a proposed amendment to the municipal charter to a vote of the electors of the city. An order denying the writ is reviewed by relator by writ of certiorari.

Bill by William L. McManus, Berk Be Ruiter, Reuben G. Porter, and William J. Jarman against the city of Petoskey, John J. Reycraft, mayor of said city, other officers and aldermen, and the Petoskey Block and Manufacturing Company, to restrain the threatened misuse of municipal funds. From a decree for complainants, defendant company appeals.

Bill by the Michigan Home Missionary Society against Lucy W. Corning and Ida C. Oxtoby, executors of the estate of Gurdon Corning, deceased, and Alexander M. Lemke, for an accounting. From a decree for complainant, defendants appeal. The last will and testament of Louise C. Bartlett, who died October 26, 1903, was duly probated November 30, 1903.

Bill by Newton D. Backus, administrator of the estate of Sarah E. Backus, deceased, against Albert U. Hoyt, Henry K. Gustin, and Charles Conklin, to redeem certain lands from a tax purchase. From a decree for complainant requiring the payment of a specified sum, both parties appeal.

Assumpsit by Helen H. Newberry against the city of Detroit for the amount of taxes paid under protest. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Mandamus by Anton C. Bauer ‘ against the State board of agriculture to compel respondents to abrogate a contract with the United States post office department and to restrain the construction of a building to be leased for use as a post office.

Bill by William F. Cowham, special administrator of the estate of Edward Twiss, deceased, against John B. Shipman for an accounting. From a decree for an insufficient amount, complainant appeals.

Bill by William S. Winegar, trustee in bankruptcy of the Household Furniture Company against Mac G. Fritz and other defendants, to enforce stockholders’ liability. On motion of Henry Sullivan, defendant, to dismiss the appeal of Frank J. Dettenthaler, a co-defendant, from a decree dismissing a cross-bill praying affirmative relief against defendant Sullivan.

Bill by Sarah B. Ferry against Silas A. Miller, Horace L. Cronk, and Sarah A. Cronk to redeem from a deed given as security for a loan and to obtain other relief. From a decree dismissing complainant’s bill, complainant appeals. On November 9, 1907, Ida Mae Miller, wife of defendant Silas A. Miller, was confined in the Calhoun county jail in default of the payment of a fine of $200.

<p>1. Trusts — Parol Agreement — Evidence—Sufficiency.</p> <p>In. a suit by stockholders and bondholders of an electric railway to enforce an alleged trust agreement, whereby one of the defendants, a creditor and bondholder of the road, agreed by parol to bid in the property on foreclosure sale for the benefit of complainants, a decree holding the evidence insufficient to establish the trust, under conflicting testimony, is affirmed on appeal.</p> <p>3. Railroads — Mortgages—Foreclosure.</p> <p>The rights of stockholders, creditors, and bondholders of an electric road terminate on a decree of foreclosure of a trust mortgage of the assets of the corporation and the purchase thereof by one of the bondholders at public sale, since the trustee under the trust mortgage represented the bondholders as a party and the corporation represented the stockholders.</p>

Mandamus by John Pettinger against Frank Emerick, circuit judge for Montmorency county, to compel respondent to vacate an order granting an extension of time for the settlement of a bill of exceptions.

Foreclosure proceedings by Emmet H. Scott against Thomas G-. Sullivan and others. A motion for rehearing was filed and denied on May 7, 1910. On motion to vacate the order denying a rehearing and on objections to the settlement of a decree because two of five justices who decided the cause had ceased to hold office.

Mandamus by the Olds Motor Works to compel James O. Murfin, one of the circuit judges of Wayne county, to set aside an order denying relator’s motion for a more specific bill of particulars, in an action of assumpsit; and to enter an order requiring the same.

Habeas corpus by Louis Satt against James Russell, warden of the branch of the State’s prison at Marquette, to determine the legality of petitioner’s detention.

Case by Jennie Rouse, administratrix of the estate of Albert Rouse, deceased, against the Michigan United Railways Company for personal injuries. Judgment for plaintiff; defendant brings error.

Bill by Rufus Raymond and Guy A. Raymond against Mary A. Spitzer and the Capitol Investment, Building & Loan Association for the specific performance of a land contract. From a decree for complainants, defendant Mary A. Spitzer appeals.

<p>1. Master and Servant — Independent Contractor — Mines and Minino — Compensation.</p> <p>A laborer working in a mine, subject to discharge at any time by the proprietor, receiving payment for removing shale and rock, by the ton, fixing his own hours of labor, and providing certain of the tools and materials for carrying on the work, is a servant, not an independent contractor.1</p> <p>2. Mines and Mining — Evidence—Judicial Notice.</p> <p>The court cannot take judicial notice that general inspection of a mine is necessary.</p> <p>3. Same — Safe Place — Supporting and Timbering Drifts.</p> <p>It was a question for the jury whether defendant used reasonable care in providing its miners with a safe place to work, where it appeared that the operations were carried on in an old coal mine, from which the timbering was removed as operations advanced; that blasting was being done in the part of the mine in which plaintiff worked; that the mining boss knew certain rock and material in the roof were loose and liable to be jarred down, but had taken no precautions to prevent it, and that the materials fell and injured plaintiff while he was working in a part of the mine that was used as a permanent passageway.</p> <p>4. Same.</p> <p>Whether ordinary care required that the rock be removed or supported in its place, whether the alleged negligence was attributable to defendant, and whether plaintiff was negligent, were questions of fact.</p> <p>5. Same — Evidence—Assurance as to Safety.</p> <p>While evidence that the agent of defendant advised plaintiff, when he went to work, that the mine was a safe one, and that plaintiff had had no previous experience in a mine, was incompetent to prove the defendant’s negligence, its admission did not prejudice defendant, since the only question of want of safety, under pleadings and evidence, related to the overhanging loose rock, and since plaintiff’s inexperience was only in question as affecting his contributory negligence.</p> <p>6. Same — Instructions—Contributory Negligence.</p> <p>In the absence of testimony tending to show that the mine boss was accustomed to examine the roof of the drift after each blast, except in the immediate vicinity of the explosion, defendant could not complain of the court’s instructions to the jury that if plaintiff followed the mine boss into the drift before the latter had time to make such examination, he was guilty of contributory negligence, the plaintiff receiving his injuries at some distance from the usual point of inspection.</p> <p>7. Damages — Charge of Court — General Instructions — Saving Questions for Review.</p> <p>That instructions to the jury on the question of damages were of a general character, does not require the reversal of the case, if they were correct and no requests for more specific instructions were presented.</p>

<p>1. Contracts — Implied Contracts — Support and Services.</p> <p>A contract will not be implied to pay for care and services rendered without expectation of recompense by one member to another member of the family, who was incompetent to make a valid contract.1</p> <p>2. Fraudulent Conveyances — Husband and Wipe — Guardian and Ward.</p> <p>In a suit by a creditor in aid of an execution upon real estate, the defendants sustained the burden of proving their good faith in transferring real property from the defendant husband to his wife, by evidence that he had collected funds as guardian of the wife’s mother, an incompetent, applied the money to the payment of a mortgage on his property, and, after the death of the incompetent, settled and paid the indebtedness to his wife, who was the sole heir of his ward, by transferring to her the real property in question, which, after deducting the homestead interest, was of value fairly to satisfy, the obligation.</p>

Assumpsit in justice’s court by Murie Nelson against John Hillen. Defendant removed the case, after judgment for plaintiff, by certiorari to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>Appeal from Delta; Stone, J.</p> <p>Bill by Philomene Des Champlain against Odelin Des Champlain for divorce. From a decree pro confesso awarding complainant alimony, defendant appeals.</p>

Case by William Flynn against George Boglarsky, Bruno Marschall, Adam Moeller, Joseph Keck, John P. Vollrath, and John C. Hacker, for libel. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>1. Appeal and Error — Chancery Practice — Decree.</p> <p>Chancery cases on appeal are heard de novo in the Supreme Court, which makes its' own decree.</p> <p>3. Same — Statutes—Bond.</p> <p>While Act No. 340, Pub. Acts 1907, does not require a bond on appeal except to stay proceedings, the construction of the bond need not therefore be different than that prevailing under the previous statute, which required the bond to perfect an appeal.</p> <p>3. Same — Bond—Personal Decree.</p> <p>A decree of foreclosure, ordering a sale of premises for default in the terms of a land contract, is not a personal decree, or different in principle from a. decree foreclosing a mortgage.</p> <p>4. Same — Foreclosure—Vendor and Purchaser:</p> <p>No personal liability is enforceable against the defendant in foreclosure proceedings under a decree for the sale of land, until after sale and a deficiency, and subsequent proceedings to secure a deficiency decree.</p> <p>5. Same — Deficiency—Equity Jurisdiction.</p> <p>Under the original equity jurisdiction there was no power to enter a personal decree against the mortgagor; the power being conferred by statute.</p> <p>6. Same — Foreclosure—Bond—Decree.</p> <p>Where the decree of this court, on appeal from a decree of foreclosure, modified the order of the lower court with costs to the appellee, and no damages were awarded for delay or loss to the appellee, the appellant is not liable for a deficiency arising on sale of the premises in assumpsit, upon the appeal bond given in pursuance of Act No. 340, Pub. Acts 1907.</p>

Assumpsit by Julius C. Otto against the city of Detroit and village of Grosse Pointe Park, for plaintiff’s unpaid salary as a street commissioner. Judgment for plaintiff. Defendant brings error.

Bill by John A. Gragg and other heirs of Lucy M. Bangs, deceased, against Charles S. Maynard and others to annul a deed. From a decree overruling a demurrer to the bill of complaint, defendants appeal.

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by Edward W. Voigt against the Murphy Heating Company to restrain the breach of a contract. From a decree for complainant, defendant appeals.</p>

Assumpsit by George William Moore and George Whitney Moore, copartners doing business as Moore & Moore, against the city of Detroit and the village of Grosse Pointe Park, for legal advice and services. Judgment for plaintiffs. Defendants bring error.

Assumpsit in justice’s court by Aaron Stone against Thomas O. Tyack. On appeal to the circuit court judgment was rendered for plaintiff and defendant brings error. Plaintiff was the stepfather, and defendant the husband, of one Flora Tyack, who died at the State asylum for the insane at Pontiac, September 6, 1909. Thomas Tyack and Flora Tyack were married in 1888, and lived together as husband and wife up to about 1907.

<p>1. Brokers — Real Property — Vendor and Purchaser — Commissions — Contract.</p> <p>Evidence that defendant told plaintiff he would pay a commission of $500 if plaintiff would sell his farm, fixing the price at $16,000; that defendant offered the purchaser which plaintiff secured certain additional crops and personal property at the price named, and offered to sell the bare farm for $14,500; that he subsequently sold the premises to the same party at $15,500, warrants a finding by the jury that the contract was one of ordinary agency, and the vendor retained control of the selling price, which he modified during the negotiations until a satisfactory agreement was reaohéd; and a verdict for the broker’s commissions was justified.1</p> <p>2. Same.</p> <p>That the sale was made, at a price lower than plaintiff was first instructed to ask, did not defeat the broker’s right to compensation.</p>

Bill by Elizabeth Davis against Louis M. Wardowski, Nellie Wardowski, and the Dime Savings Bank, to foreclose a mortgage. Defendants filed a cross-bill claiming affirmative relief. From a decree for complainant, defendant Nellie Wardowski appeals.

Case by Joseph Orso against the Great Lakes Engineering Works, for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by A. Louis Levy, administrator of the estate of Samuel Sausonsky, deceased, against the Houghton County Street Railway Company. A judgment for defendant on a verdict directed by tbe court is reviewed by plaintiff on writ of error.

Bill by Frank Schmidt against Carl Schmidt, Oscar Schmidt, the First National Bank of Calumet, and the Citizens’ National Bank of Houghton, for the dissolution of a partnership, an accounting, and other relief. From a decree dismissing the bill, complainant appeals.

Mandamus by George M. Haney against Philip Padgham, judge of the Allegan circuit court, to require the settlement of a record and approval of an appeal bond.

Exceptions before sentence from Wexford; Lamb, J. William Mitchell was convicted of keeping a place where intoxicating liquors were sold in a county that had adopted prohibition of the liquor traffic.

Mandamus by Henry A. Mandell and Charles A. Buhrer against Thomas F. Farrell, Wayne county clerk, to compel the filing of petitions for primary nomination of the relators as candidates for circuit judge and county auditor, respectively.

Information in the nature of quo warranto by Franz C. Kuhn, attorney general, on the relation of Guy W. Selby and others, against Bruce J. Macdonald to determine respondent’s right to the office of member of the Flint charter commission.

Mandamus by Thomas E. Lewis and 320 electors of Montmorency county against the board of supervisors thereof, to require them to reconvene and determine whether the question of prohibiting the liquor traffic should be submitted to the electors. From an order granting the writ, respondent brings certiorari.

Bill by Milford O. Abbott against Mary E. Jones, personally and as administratrix of the estate of Allen Jones, deceased, to establish an interest in real property. From a decree for complainant, defendant appeals.

Mandamus by John H. Meyering and J. Ralph Meyering against James O. Murfin, one of the circuit judges for the county of Wayne, to compel the correction of a judgment' entry.

.Error to Berrien; Coolidge, J. Ejectment by Ida N. Tyler, against Addie Wright, Louis Pector, and Jacob Goodman: A judgment for plaintiff on a verdict directed by the court is reviewed by defendants on writ of error.

<p>1. Partnership — Presumptions — Evidence of Share of Partners.</p> <p>Partners are presumed, in the absence of any showing of their respective shares, to have equal interests.</p> <p>2. Same.</p> <p>Conflicting evidence that partners held different shares of the joint venture is considered and held, to sustain a finding that complainant was entitled to one-half the profits.</p> <p>3. Same — Fiduciary Relations — Implied Trust.</p> <p>Where a corporation made an alleged sale of its interest in certain contracts for the sale of machinery, to one of the partners, an officer of the company, in consideration of the amount due on the contracts and of an additional bonus, and handled the financial arrangements arising out of the transaction and kept records thereof on its books, and eventually sold the machinery at a profit to the copartnership, it stood in fiduciary relations to the copartners as to profits made and retained by it.</p> <p>4. Same — Agency.</p> <p>One of the partners as agent of the firm had authority to make the agreement to pay the bonus, whether he so agreed before or after the formation of the copartnership.</p>

<p>1. Malicious Prosecution — Abuse of Process — Trespass on the Case.</p> <p>The action for abuse of process lies for the wrongful use of the process of a court after its issuance, not for maliciously causing it to issue.</p> <p>2. Same — Malice—Process.</p> <p>Two elements are necessary to an action for the malicious abuse of legal process: (1) The existence of an ulterior purpose ; (2) an act in the use of the process not proper in the regular prosecution of the proceeding. But its regular and legitimate use, though with a bad intention, is not a malicious abuse thereof.</p> <p>3. Same — Malicious Abuse of Process — Criminal Law.</p> <p>It is not actionable abuse of criminal process to make complaint against a person for keeping a bucket shop, to which charge the respondent pleaded guilty and was fined, where defendant had done no improper or irregular act in connection with the use of the process, and had no control oyer the warrant or prosecution after making complaint.</p>

Information in the nature of quo warranto by John E. Bird, attorney general, on the relation of Charles P. Buggies, against the Buckley & Douglas Lumber Company. A judgment for respondent on a verdict directed by the court is reviewed by relator on writ of error.

Bill by Frank M. Root against Minnie M. Root for injunction. Defendant filed a cross-bill for divorce. From a decree granting the divorce and awarding alimony, both parties appeal. The parties to this cause are husband and wife, having been married in the year 1890. For ten years after the marriage they lived at various places; the husband being engaged a part of the time as a teacher and later as a piano salesman.

Bill by Asbury O. Leonard against Charles Roth and the Ditzler Color Company, to compel the retransfer of stock pledged to defendant Roth, upon a tender of the amount of the secured indebtedness. Louis J. Goux, claiming rights in the stock under a parol contract, intervened by petition and was substituted in place of complainant. From a decree for intervener, defendant Roth appeals.

<p>1. Street Railways — Operation op Oars — Negligence—Boarding Cars — Variance.</p> <p>It was not a fatal variance under a declaration charging that after plaintiff stepped on the lower step of the car the defendant’s servants suddenly started the car forward and threw him off, to show by the testimony that the car had started in the usual way, and, as he was stepping on the second step, it suddenly increased the speed and threw him to the ground.1</p> <p>2. Same.</p> <p>Whether plaintiff’s injury resulted from the sudden acceleration of the car or from the starting of it, was for the jury, under evidence which might support conflicting inferences.</p> <p>3. Same — Trial—Requests.</p> <p>A request defining the aot of boarding a car was unnecessary, and was also properly refused as incorrect.</p> <p>4. Same — Duty to Passengers — Carriers.</p> <p>The court did not err in charging the jury that plaintiff was entitled to an opportunity to come to a place of safety on the car, before it was started.</p> <p>5. Evidence — Impeachment—Intoxication.</p> <p>In an action for injuries sustained in boarding a street car, statements of plaintiff’s companions, made in his presence to his physician, stating incorrectly the facts as to their boarding and alighting from the car, not offered to impeach the witnesses or as substantive evidence, but as tending to show they were intoxicated, were properly excluded by the court on the objection of plaintiff’s attorney that proper ground for impeachment had not been laid.</p> <p>6. Trial — Argument — Saving Questions for Review — Appeal and Error.</p> <p>Objectionable argument of plaintiff’s counsel, not ruled upon by the trial court, and claimed to be in answer to argument of defendant’s attorney, did not constitute reversible error.</p>

Assumpsit by Nobert Boyer against August Joyal for support provided the defendant’s daughter. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Assumpsit by George Trudeau and Charles Rambaud against Anselme Boivin on an open account. Defendant claimed a set-off which was partly allowed by the verdict. Judgment for plaintiffs. Defendant brings error.

Exceptions before sentence from Jackson; Parkinson, J. Sylvester Hickman was convicted of violating the local-option law. The local-option law is in force in Jackson county. Respondent was arrested, charged with violating the law, in that he kept a place where intoxicating liquors were sold, stored for sale, and furnished, he not being a druggist or pharmacist; and in that, during a period of time set out, he kept intoxicating liquors for sale at the place described.

Exceptions before sentence from Emmet; Shepherd, J. Levi B. Aldorfer was convicted of unlawfully keeping a place for the sale of intoxicating liquors in a county that had prohibited the liquor traffic.

<p>Error to Presque Isle; Emerick, J.</p> <p>Fred Fisch, Sr., was convicted of violating the local-option law.</p>

Assumpsit by Frederick E. McCain as executor of the estate of Edmund S. McCain, deceased, for services rendered. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Stockholders’ suit by Nathan Woodmansee and Austin F. Smith, against the Ann Arbor Brick Company, Horace G. Smith, Charles L. Smith, and George F. Smith. Held: since the first meeting. (9) Complainants believe the corporation to be insolvent, defendants admit an indebtedness of f1,700 or thereabouts, due to various persons for labor, and there are believed to be other debts.

Assumpsit in justice’s court by Joseph McCarty against the Caledonia Coal Company, Limited, for work, labor, and services. From a judgment for plaintiff, defendant appealed to the circuit court. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

' Error to Bay; Collins, J. Case by Maude E. Rivers, administratrix of the estate of Henry N. Rivers, deceased, against the Bay City Traction & Electric Company for the negligent killing of her husband. Judgment for plaintiff. Defendant brings error.