Volume 166 — Michigan Reports

<p>1. Criminal Law — Assault and Battery — Intent.</p> <p>Respondent, oharged with assault with intent to kill and murder and convicted of assault and battery, was not prejudiced by the admission in evidence of his statements as to what he would have done if he could, or would thereafter do, to the complaining witness; such testimony bearing on the question of intent, which was determined by the jury in respondent’s favor.</p> <p>3. Same.</p> <p>Testimony relating to a conversation between complaining witness and his employés, not brought to the knowledge of respondent, was properly excluded.</p> <p>8. Same — Assault With Intent to Murder.</p> <p>The court did not err in charging the jury that, if respondent did intend to kill the person assaulted, and that it was necessary for him to do so to protect himself, or that the circumstances appeared to him at the time of the assault to be such as to lead a reasonable man to so believe, and he did reasonably believe that it was necessary to kill or disable him in order to protect himself from death or great bodily harm, the verdict should be not guilty.</p>

<p>1. Homicide — Death—Presumptions—Evidence.</p> <p>A charge, in a prosecution for murder, correctly advised the jury that death resulting from an assault, in the absenoe of any proof to the contrary, is presumed to be felonious — either murder or manslaughter — and that if it resulted from wounds inflicted by a deadly weapon, malice is presumed.</p> <p>3. Same — Trial—Instructions to Jury.</p> <p>Nor did the court err in stating to the jury the claim of the prosecution on the question of malice aforethought.</p> <p>8. Same — Harmless Error.</p> <p>But after a conviction of manslaughter any possible error in that respect was harmless.</p> <p>%. Criminal Law — Trial—Jurors—Citizens—Qualifications.</p> <p>Under the presumption that a juror is qualified, a juror who came to the United States from Canada in 1868 and took out full papers in 1864 will be deemed to comply with the statutory requirements affecting the upper peninsula of this State. 1 Comp. Laws, §§ 319, 844, 353. Art. 3, § 1, Const. 1909.</p> <p>5. Same — Argument of Prosecuting Attorney.</p> <p>The evidence was sufficient to justify the prosecuting attorney in arguing that respondent received certain bruises on his face by falling from his buggy, where it appeared that certain witnesses saw respondent at the time of the shooting and there were no bruises on his face, and that he subsequently on the same day fell from his buggy head foremost.</p>

<p>Error to Lapeer; Smith J.</p> <p>William H. Peterson was convicted of the careless use of a firearm.</p>

Bill by Stephen A. Lockwood against George Pope and Benjamin Taylor to restrain defendants from cutting timber on complainant's farm. From a decree dismissing the bill, complainant appeals.

Upon the application of W- E. Rhodes and others to the county drain commissioner of Calhoun county to deepen and widen a drain, proceedings to take private property therefor were commenced, and, on review in the Supreme Court, were quashed.

Case by Elizabeth Sweezo, administratrix of the estate of Augustus Sweezo, deceased, for the negligent killing of intestate. Judgment for plaintiff. Defendant brings error.

Assumpsit by Louis S. Darling against the city of Manistee, on a certificate of indebtedness. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error. The action was brought to recover an amount claimed to be due plaintiff as assignee of a certificate of indebtedness issued by defendant city.

<p>Railroads — Negligence—Train Dispatcher — Operator — Fellow-Servants.</p> <p>An engineer, injured in a railway wreck caused by a local operator's mistake in transcribing a correct and proper order sent by defendant’s train dispatcher, cannot recover, since the operator was his fellow-servant.1</p>

Case by Byron Burton against the Brunswick-Balke-Gollender Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Benjamin Dreiband against James D. Candler and George Y. Candler, copartners as J. D. Candler & Company, for personal injuries. Judgment for defendants and plaintiff brings error. On motion of plaintiff’s attorneys to strike from the files a stipulation discontinuing the cause.

Mandamus by the Battle Creek Brewing Company against the board of supervisors of Calhoun county to compel them to declare the adoption of local prohibition rescinded at an election. An order granting the writ is reviewed by respondent on writ of certiorari.

Mandamus by Franz 0. Kuhn, attorney general, on the relation of Chester H. Bliss, against the board of supervisors of Genesee county to compel said board to reconvene, canvass the vote, and announce the result of a local-option election.

, presiding. Case by the Grand Rapids & Indiana Railway Company against the village of Morley and William Hugh, Sr., for damming a stream and negligently permitting the waters to break away and flood plaintiff’s right of way. An order overruling a demurrer of the defendant village is reviewed by defendant on certiorari.

Assumpsit by the International Text-Book Company against Walter M. Jones on a written contract. A judgment for plaintiff for six cents damages on a verdict directed by the court, is reviewed by plaintiff on writ of error.

William N. Marr presented a petition in the cause of Albert E. Bigelow and others against Robert C. Sheehan and others for the allowance of brokers’ commissions. From a decree dismissing the petition, said Marr appeals.

<p>1. Street Railroads — Negligence—Contributory Negligence —Directing Verdict.</p> <p>Whether it was negligent for the driver of a load of lumber and a slowly moving team to attempt to cross in front of a street oar which he claimed was 200 feet and upwards behind him, was a question for the jury, where he crossed at a point at which the track turned from the middle of the street to the side and it might have appeared to the motorman that he would be obliged to cross at that place, and where testimony showed that the car struck the lumber projecting from the rear of the wagon, which had entirely crossed the tracks in safety.</p> <p>2. Same.</p> <p>But the judgment is reversed and a new trial ordered on the theory of three of the justices that it was error to instruct the jury that the motorman was negligent if he failed to anticipate that plaintiff might cross the track at the crossing, and on the theory of two of the justices that there was error in an implication, contained in the instructions, that the plaintiff was not required, equally with the motorman, to act with reference to known conditions, including the one that defendant’s car had the right of way. Bird, Moore, and Blair, JJ., dissenting.</p>

Case by Mabel Ottinger against the Detroit United Railway. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Mandamus by Eva Yan Leuven to compel Charles B. Collingwood, one of the circuit judges for the county of Ingham, to vacate an order dismissing an appeal from an order of the probate court committing the relator to the Industrial School for Girls at Adrian.

Petition by the officers of the Michigan Milk & Food Products Company for its voluntary dissolution. Frederick A. Travis, having been appointed receiver, filed a petition to set aside certain execution levies of James N. McBride and other judgment creditors on corporate assets. From a decree for petitioner, defendants appeal.

Bill by Lyman Rodgers and others against G. Gordon Huntley and others, to set aside certain proceedings in probate court to lay out and construct a drain, and for an injunction and other relief. From a decree for complainants, defendants appeal.

Bill by John S. Lawrence and others against the city of Grand Rapids and another to set aside a special assessment. From a decree for complainant, the defendant the city of Grand Rapids appeals.

<p>Error to Wayne; Mandell, J.</p> <p>Case by Ella Krouse against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Summary proceedings for the possession of real property by William H. Baldwin and Maude Baldwin against Frank J. Baldwin. From a judgment in favor of complainants in commissioner’s court, defendant appealed to the circuit court, where the judgment was affirmed. Defendant brings error.

Ejectment by Milton Smith against George W. Cole. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Bill by Fred Dailey against Minnie Dailey for divorce. After a decree for complainant, to whom the custody of the children was awarded, defendant presented a petition to have the order so modified as to give her the custody of one of them. From an order granting the prayer of the petitioner, complainant appeals.

<p>1. Pleading — Animals—Trespass on the Case — 'Vicious Nature — Declaration.</p> <p>A declaration in case for personal injuries by being bitten by a dog, alleging that defendant wrongfully, recklessly and injuriously owned, kept and harbored a large number of vicious and ferocious dogs, knowing that they were accustomed to bite mankind, and that one of them not being properly restrained bit plaintiff, stated a cause of action.1</p> <p>2. Animals — Dogs—Keeper or Owner — Personal Injuries.</p> <p>In an action for injuries inflicted by a vicious dog, evidence that the defendant had presented the dog to his wife, that it was kept on the premises occupied by his household, that he returned home from Chicago at the end of each week and remained over Sunday, sufficiently proves that the defendant was the keeper of the animal.</p> <p>3. Same — Vicious Nature — Evidence—Negligence.</p> <p>It is not necessary to show that the dog had actually bitten any one prior to plaintiff’s injury.</p> <p>4. Evidence — Privilege—Physicians.</p> <p>By calling to the stand one physician who treated plaintiff for a dog bite and by testifying that another physician treated him previously for the same injury, plaintiff did not waive his privilege to object to the testimony of the other physician called as a witness by defendant as to the nature of plaintiff’s injuries.</p>

<p>Error to Wayne; Murfin, J.</p> <p>Case by Charles Brown against John A. Bryant and Ward A. Detwiler, copartners, for personal injuries. Judgment for plaintiff. Defendants bring error.</p>

Assumpsit in justice’s court by Joseph Wawrzyniak against Joseph Tobicej and Bloisey Niezela, copartners. From a judgment for plaintiff defendants appealed to the circuit court. Judgment for defendants. Plaintiff brings error.

Action at law by Guy Arnold against the Huber Manufacturing Company. Defendant moved to quash the service of process, and the motion was overruled. Defendant brings certiorari.

Assumpsit by Alfred J. Myers against the Roger J. Sullivan Company on a contract of employment. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Assumpsit by Stephen Y. R. Hayes against David E. McAra on a broker’s contract. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by John Xlimowicz against Parker, Webb & 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 Macomb; Tappan, J., presiding.</p> <p>Case by John Tietz, by next friend, against the Grand Trunk Railway Company of Canada. Judgment for plaintiff. Defendant brings error.</p>

Case by James A. Merrill against David Leisenring for the alienation of the affections of plaintiff’s wife. Judgment for plaintiff. Defendant brings error.

Case-made from Wayne; Murfin, J. Trover and case by Yarney K. Sturges and Austin Hale, copartners as the Detroit Leather Works, against the Detroit, Grand Haven & Milwaukee Railway Company and another on a contract of shipment. Judgment for plaintiff against said railway company which brings error.

<p>Error to Wayne; Donovan, J.</p> <p>Assumpsit by Jessie C. Bullock against the Mutual Life Insurance Company of New York, on a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

Bill by Thomas B. Aldrich against Fanny Aldrich for divorce. Several years after the entry of a decree awarding defendant a divorce on her cross-bill, and fixing the amount of alimony, complainant filed a petition praying for a reduction in the amount thereof. From an order denying the relief prayed, petitioner appeals.

Bill by Matthew Brady against the City of Detroit and others to restrain the collection of certain special assessments. From a decree granting a portion of the relief prayed both parties appeal.

<p>Divorce — N onsupport.</p> <p>The testimony in a suit for divorce, on the ground of nonsupport, is considered on appeal and held, insufficient to sustain the decree of the trial court granting the divorce.</p>

<p>Error to Kalamazoo; Knappen, J.</p> <p>Case by Ella P. King, by George Knowles, her guardian, against John A. Sipley for fraud. Judgment for plaintiff. Defendant brings error.</p>

Case by Leon Gibbs, administrator of the estate of Robert I. McCorkle, deceased, against Edward J. Dayton and Albert E. Rose. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Error to Ingham; Collingwood, J.</p> <p>Trover by Homer G. Mulholland against John Kelsey. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Wayne; Murfin, J.</p> <p>Assumpsit by the Harrington-Wiard Company against the Blomstrom Manufacturing Company for breach of a contract. Judgment for plaintiff. Defendant brings error.</p>

<p>Exceptions before sentence from Sanilac; Beach, J.</p> <p>The C. Kern Brewing Company, Christian Kern, Otto Kern, and Julius Kern were convicted of violating the local-option law.</p>

Bill by Charles K. Latham against Nicholas Savage to cancel a guaranty of part of a note and mortgage. From a decree for defendant, complainant appeals.

Bill by the Parsons Business College against the city of Kalamazoo and Albert Ten Busschen for an injunction to restrain the collection of a tax and for a decree declaring property of complainant exempt. From a decree for complainant, defendant appeals.

Ejectment by Margaret Killackey against Robert Killackey and others. Subsequently to the affirmance of a judgment for plaintiff she filed a declaration against Robert Killackey in the nature of statutory proceedings for the recovery of damages for withholding dower. Judgment for plaintiff. Defendant brings error. This is a supplemental proceeding to recover mesne profits for the withholding of dower taken under the provisions of section 10988 et seq., 3 Comp. Laws.

<p>Exceptions before sentence from Macomb; McKay, J.</p> <p>Emil Rohl was convicted of assault with intent to murder.</p>

Assumpsit by James Bailey against the Sibley Quarry Company, a corporation, for money had and received. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Assumpsit in justice’s court by the Columbia Phonograph Company against John A. Sherman and Frank P. Sherman for goods sold. Plaintiff appealed to the circuit court from a judgment in defendants’ favor. Judgment for defendants. Plaintiff brings error.

Assumpsit by B. Ferdinand Brucker and Charles M. Roberts against the Manistee & Grand Rapids Railroad Company for work and material and for breach of contract. Judgment for plaintiffs. Defendant brings error.

<p>Municipal Corporations — Ice and Snow — Cleaning Sidewalks.</p> <p>A city is not liable for personal injuries caused to a person on the sidewalk by slipping on a ridge of ice or snow left in the center by a snowplow, whether the icy condition was caused by water dripping from the eaves of a building or by snow packed in the center of the walk by its ordinary use.1</p>

<p>Error to Van Burén; Des Voignes, J.</p> <p>Ejectment by Goldie Carby and Vera Carby against Sadie Combs. Judgment for plaintiffs. Defendant brings error.</p>

<p>Error to Houghton; Streeter, J.</p> <p>Case by Henry Danula against the Quincy Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by Mathias Steyskal against George W. Radford, James Ronald, and Jennie H. Massey to remove a cloud from complainant’s title to certain real property. From an order overruling a demurrer, defendant Radford appeals.

<p>1. Street Railways — Negligence—Derailment — Res Ipsa Loquitur.</p> <p>Evidence that the rear trucks of one of defendant’s interurban cars became derailed, and traveled on the edges of the rails for upwards of a block, when the rear of the car swung out into the street and injured plaintiff who was riding in a buggy in the street, does not show negligence of the defendant.</p> <p>2. Evidence — Precautions After Accident.</p> <p>It was incompetent to show that after the accident defendant stationed a watchman at the point of derailment to direct the movement of cars.</p> <p>3. Damages — Habits of Sobriety and Industry.</p> <p>As affecting the question of damages, testimony was admissible to show plaintiff’s habits of industry and sobriety.</p>

Case by Hannah Lepard, administratrix of the estate of Richard Lepard, deceased, against the Michigan Central Railroad Company, for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.

<p>1. Contracts — Compromise and Settlement — Fraud.</p> <p>The fact that an architect, who was made the arbiter under a construction contract as between the contractor and owner, allowed certain items claimed by the contractor as extras and disallowed others, is insufficient, unless supported by other evidence of bad faith or collusion, to establish fraud.</p> <p>3. Same — Bond—Extras.</p> <p>Upon no theory of the case could the contractor recover the cost of a surety bond not required under the terms of the building contract, but furnished by such contractor on the demand of the supervising architect.</p> <p>3. Same — Compromise—Waiver.</p> <p>It was not a waiver of the provision making the architect the final arbiter, that an agreement was subsequently executed by the parties in which the amount determined .by the finding of the architect was adopted as the correct amount due and was paid and accepted by plaintiff in settlement of his demand.</p> <p>4. Same — Conditions Precedent.</p> <p>Plaintiff could not recover items claimed to be due without submitting the same to the architect for his certification, and obtaining the certificate, as required by the provisions of the contract.</p> <p>Bird, J., dissenting in part.</p>

<p>1. Master and Servant — Railroads—Brakemen—Wires—Safe Place — Statutes.</p> <p>A brakeman riding on top of a box car is not required at his peril to discover telephone wires stretched across a railroad siding at a height of less than 32 feet, contrary to the provisions of statute; 2 Comp. Laws, § 6354.</p> <p>2. ' Same — Contributory Negligence.</p> <p>And a special verdict determining in answer to a question that plaintiff could have seen the wires if he had looked for them was not conclusive of the negligence of the brakeman who testified that he did not know they were there.</p> <p>3. Same.</p> <p>It was not negligent, as a matter of law, for plaintiff to ride on top of the freight car.</p> <p>4. Same — Instructions to Jury.</p> <p>No error was committed in charging the jury that it was plaintiff’s duty if he had actual knowledge of the existence of the wire to protect himself, and that if on this occasion he knew or could in the exercise of ordinary care have discovered the wires, he was guilty of negligence; as the language considered with the remainder of the charge did not limit plaintiff’s knowledge to the particular occasion, but permitted a finding that if he had or ought to have had previous knowledge, he was negligent.</p> <p>6. Same.</p> <p>It was sufficient, in instructing the jury as to the burden of proof, to define “ preponderance of evidence” and “burden of proof,” to inform the jury that the burden was on plaintiff to prove the various elements of his case, as specified by the court, and to charge that plaintiff to recover must show negligence, freedom from contributory negligence, and an injury as alleged, accompanied by proper definitions of negligence and contributory negligence.</p>

<p>Appeal from Wayne; Rohnert, J.</p> <p>Bill by Millie K. Wagner against Christian Kirchberg to compel the redelivery of a deed in escrow. From a decree for complainant, defendant appeals.</p>

<p>Error to Wayne; Murphy, J.</p> <p>Case by Peter Antosik, by next friend, against the Michigan Alkali Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Bill by Evaline Newton against Lyman Newton for divorce. A number of years having elapsed subsequent to the hearing, one O. H. Lent, administrator of the estate of Nellie Newton, deceased, filed a petition to have a decree entered in said cause in accordance with the opinion and direction of the trial judge at the hearing. From an order denying the relief prayed, petitioner appeals.

Assumpsit in justice’s court by David N. Harper against the Concrete Publishing Company. Plaintiff appealed to the circuit court from a judgment for defendant on defendant’s claim of set-off and recoupment. Judgment for defendant. Plaintiff brings error.

Assumpsit by the Acme Food Company, a foreign corporation, against R. G. Kirsch and E. O. Thompson on a foreign judgment. On the trial before the court without a jury judgment was rendered for plaintiff. Defendants bring error.

Mandamus by the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, against Franz C. Kuhn, attorney general of said State, to compel the approval of amended articles of association of the relator.

Application by Julius J. Patek for a temporary injunction in a suit in which petitioner is complainant and Bertha Patek, First National Bank of Iron wood, and Philip Tillinghast, as receiver thereof, are defendants, to restrain the removal of trust funds from the State pending an appeal by complainant. Order to show cause issued March 13, 1911.

Bill by Julius J. Patek against Bertha Patek, the First National Bank of Ironwood, and Philip Tillinghast, as receiver of defendant bank, for a discovery and other relief. From a decree sustaining a demurrer to the bill of complaint, complainant appeals.

The Michigan Trust Company presented its annual account as administrator of the estate of Mary McNamara, deceased, in the probate court for the county of Kent, by which the account was allowed. J ames McNamara appealed to the circuit court. Judgment was entered affirming the order of the probate court. Contestant brings error.

Bill by Charles E. Ruggles against James E. Merritt, Nellie Merritt, and the Buckley & Douglas Lumber Company, for an accounting. From a decree overruling demurrers to the bill of complaint, defendants appeal. The bill of complaint was filed April 25, 1910.

<p>Divorce — Alimony—Homestead.</p> <p>In a decree divorcing complainant and her husband and awarding as alimony one-half the personal property which belonged to the husband and requiring her to deed to defendant the homestead held by the entireties on complainant’s being paid $500, the provision for her should be increased by awarding to complainant all the household furniture and requiring a payment of $800 as a condition of the execution to him by her of the deed.</p>

Assumpsit by J. Prank Richards against the Church Balance-Gear Company, Limited, upon a contract of hiring and on the common counts. Judgment for plaintiff. Defendant brings error.

Errorto Wayne; Rohnert, J. Case by the Michigan Lumber Yard, a corporation, against August F. Blesch, for false representations. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Bill by Amasa A. Harper as administrator of the estate of Catherine Corcoran, deceased, for an accounting. From a decree for complainant for less than the amount claimed, both parties appeal.

<p>Appeal from Clinton; Searl, J.</p> <p>Bill by Edwin M. Smith against Edward A. Durkee to restrain the violation of a contract. From a decree for complainant, defendant appealed.</p>

Case by Kathryn Bannigan against Edward Wood-bury, personally and as administrator of the estate of Jeremiah Woodbury, deceased. Daniel F. Altland as administrator of defendant was substituted as a party on defendant’s decease. Judgment for plaintiff. Defendant brings error.

Case in justice’s court by John E. Haynes against William H. Maybury for damages to personal property and for personal injuries. Defendant appealed to the circuit court from a judgment for plaintiff. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case-made from Calhoun; North, J. Assumpsit by the General Conference Association of the Seventh Day Adventists against the Michigan Sanitarium & Benevolent Association on certain promissory notes. A judgment for plaintiff is reviewed by defendant on case-made.

Theodore Swenson was convicted of violating the liquor law and, after affirmance on exceptions before sentence, was sentenced to pay a fine or be committed to the county jail.

Exceptions before sentence from Allegan; Padgham, J. Walter Lewis was convicted of keeping a place where intoxicating liquors were furnished in a county that had adopted prohibition.

Mandamus by Thomas Early and William Fitzpatrick against Howard Wiest, one of the circuit judges for the county of Ingham, to compel the issuance of a temporary injunction restraining the enforcement of an arbitration award and to secure the entry of an order on the law side of said court staying proceedings pending the determination of the suit in equity.

Bill by the Illinois Glass Company against the United States Horse-Radish Company and John B. Eddington, personally and as assignee for the benefit of creditors of the defendant company, to obtain the allowance of an account as a preferred claim. From a decree for complainant, Wallis Craig Smith, one of the creditors of the defendant corporation, appeals.

<p>Error to Hillsdale; Chester, J.</p> <p>Assumpsit by the Merchants’ National Bank against Fred B. Wadsworth and Burton A. Bowditch on certain promissory notes. Judgment for defendants. Plaintiff brings error.</p>

Replevin by Charles R. Alexander and Andrew E. Alexander, copartners as Alexander Brothers, against Peter Weishuhn. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.

Assumpsit by the A. B. Klise Lumber Company against the East Jordan Lumber Company on a contract of sale of lumber. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Bill of interpleader by the Ladies of the Modern Maccabees, a domestic corporation, against Mary E. Daley, Agnes Hatch, and Patrick O’Grady. Prom a decree awarding to defendant Mary E. Daley a part of the relief claimed, all the defendants appeal.

<p>1. Trial — Cross-Examination—Witnesses—Evidence.</p> <p>The extent of cross-examination of a party is discretionary with the trial conrt.</p> <p>2. Same — Conduct of Counsel.</p> <p>A statement of plaintiff’s attorney made to the court in the conduct of cross-examination of defendant, relating to the purpose of a question that defendant’s attorney had objected to, held not ground for reversal.</p> <p>3. Same-New Trial — Weight of Evidence.</p> <p>Evidence examined, and held to sustain a verdict for plaintiff and to warrant the refusal of a new trial.</p>

Assumpsit in justice’s court by Alexander J. Stuart against William R. Holt for broker’s commissions. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>Error to Chippewa; Steere, J.</p> <p>Case by Alfreitta' Speck against the township of Bruce for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Errorto Wayne; Murfin, J. Assumpsit by Jacob Friedberg and Morris Friedberg, copartners as J. Friedberg & Son, against Alvin S. Clark, whose death was suggested on the record after the action was commenced, and Charles D. Bennett, executor of decedent’s estate, substituted. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.

Assumpsit by Charles A. Genrow against William H. Elynn and E. J. R. Sevald, copartners as Flynn & Sevald, to recover back attorney’s fees paid defendants. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

Mandamus by William Fuchs to compel the common council of the village of Grass Lake to approve relator’s application and bond to conduct a saloon. An order denying the writ is reviewed by relator on certiorari.

Petition by George A. Fritch for a stay of execution of sentence and admission to bail pending an appeal from a conviction on a charge of manslaughter.

Bill by Sheldon, Eamm & Company against Frederick J. Bremer and others to enforce a mechanic’s lien. From a decree dismissing the bill as to all defendants except said Bremer, the complainant appeals.

<p>1. Criminal Law — Rape —Evidence—Hypothetical Questions Statutory Assault — Infant.</p> <p>It was error, in a prosecution for statutory rape committed on a girl of ten years of age, where it had appeared that she had previously had sexual relations with another man on numerous occasions and with a young boy, to permit the prosecuting attorney to ask an expert witness whether one or two acts of intercourse by the first party would account for her condition at the time witness made a physical examination.</p> <p>2. Same — Defense—Motive of Prosecution.</p> <p>Where the defense was that the charge brought against respondent was trumped up by the second wife of the girl’s father, who had been divorced from her mother, had remarried and was seeking to secure the custody of the child and avoid the payment of further alimony for her maintenance, respondent’s attorney should have been permitted to examine the divorced wife relative to her alleged understanding with the father that after five years the alimony should be changed in amount.</p> <p>3. Evidence — Reputation—Rape.</p> <p>Evidence offered by respondent to show his good reputation was admissible as substantive proof of his innocence, and its effect ought not to have been restricted by the charge of the court to his conduct in sexual matters.</p>

Bill by Wilbur W. Steele against Allaseba M. Bliss and others to set aside certain judgments and to restrain the sale of lands on execution levy. On motion of complainants to set aside an order modifying a preliminary injunction and permitting defendants to sell lands under an execution levy.

<p>1. Municipal Corporations — Sidewalks—Obstructions—Negligence-Trial.</p> <p>In reviewing a verdict and judgment for defendant, a municipal corporation, charged with negligence in maintaining in a sidewalk a water shut-off box on which plaintiff tripped, the court did not commit prejudicial error by a charge to the jury, that unless an obstruction existed two inches in height the sidewalk was reasonably safe, if it did exist two inches it was a question of fact, but if two inches or less, there was no negligence on the part of the city; it being evident from the context that the court intended to say if the obstruction exceeded two inches the question was for the jury.</p> <p>2. Same.</p> <p>The court was not in error in applying the rule that an inequality of two inches or less in a sidewalk does not render it dangerous for public travel.</p> <p>Ostrander, O. J., and Bird and Moore, JJ., dissenting.</p> <p>3. Appeal and Error — Saving Questions for Review.</p> <p>The Supreme Court cannot consider an objection not brought to the attention of the trial court or based on an exception.</p>

James A. Connery presented for probate an instrument purporting to be the will of Christina Sutherland Connery, deceased. From an order admitting the same to probate, William S. Connery, contestant, appealed to the circuit court, where the order was affirmed. Contestant brings error.

Assumpsit by James Carpenter against William E. Lennane and John Lennane, copartners as Lennane Brothers, for work, labor, and materials. Judgment for plaintiff. Defendants bring error.

, presiding. Creditor’s bill by the Utica Fire Alarm Telegraph Company against the Waggoner Watchman Clock Company, Edward M. Deane, and Christian Bertsch, to enforce stockholders’ liability. By cross-bill Annie Y. Sears, Albert E. Waggoner, and W. B. Waggoner were brought in as parties. From a decree dismissing said cross-bill and awarding relief to complainant, the defendants appeal.

Assumpsit by William O. Eoote, as trustee in bankruptcy of the estate of the Traverse City Motor Boat Company, against Clarence L. Greilick on a stock subscription. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Case by Mary Humphrey against the Michigan United Railways Company for an assault and resulting injuries. Judgment for plaintiff. Defendant brings error. On June 8, 1909, plaintiff purchased from defendant a commutation book containing 52 coupon tickets, each good for transportation over defendant’s road between Comstock and Kalamazoo.

Bills in aid of execution by Stephen S. Smith against Myron Tolman and Rose Tolman, by Ray Robson against the same, and by Roscoe J. Carl and Raymond J. Read, executors of the estate of John Read, deceased, against the same. The three suits were heard together. From a decree dismissing complainants’ bills, complainants appeal.

<p>Exceptions before sentence from Allegan; Padgham, J.</p> <p>Frank Hancock was convicted of violating the local-option law.</p>

Mandamus by Albert N. Ford, trustee in bankruptcy of tbe estate of Charles R. Wells, to compel the State board of education of Michigan to pay to said trustee the balance due under a contract with said bankrupt.

Assumpsit by the International Text-Book Company against Norris E. Marvin on a contract of subscription to a correspondence course. Judgment for defendant. Plaintiff brings error. Defendant signed a paper, partly printed, partly written, headed: “ Do not sign this subscription without reading it.

Assumpsit by George M. Miner against the National Casualty Company on a policy of insurance. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Case by Harry Yost, by bis next friend, against tbe Grand Trunk Railway Company for personal injuries. A judgment for defendant on a verdict directed by tbe court is reviewed by plaintiff on writ of error.

Case by John M. Farnsworth against the National Express Company. A judgment for plaintiff for less than the amount claimed, upon a verdict directed by the court, is reviewed by plaintiff on writ of error.

Assumpsit by H. Leonard & Sons, a corporation, against Ernest A. Stowe and Harriet E. Stowe for the price of goods sold. A judgment for plaintiff against Harriet E. Stowe and for defendant Ernest A. Stowe, on a verdict directed by the court, is reviewed by plaintiff on writ of error. Plaintiff is a mercantile corporation. The defendants are husband and wife, living together, maintaining a home in the city of Grand Eapids, Mich.

Case by Margaret Measel, administratrix of the estate of Benjamin H. Measel, deceased, against the Detroit United Railway, for the negligent killing of decedent. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Assumpsit by Gertrude Gall against the Sovereign Camp of the Woodmen of the World on a benefit certificate. Judgment for plaintiff. Defendant brings error. In his application for a certificate in defendant beneficiary society, John K. Gall answered certain questions as follows: “Do you now use wine, spirits or malt liquors? No. If so, what kind and average amount per day. (No answer.) “Were you ever intoxicated? No. If so, when.

<p>1. False Imprisonment — Abuse of Prooess — Justification.</p> <p>In an action for false imprisonment, in which plaintiff produced evidence that he .was a resident of California, and while temporarily in Michigan was a witness for the people in a prosecution against defendant, accused of running his automobile at an unlawful rate of speed, that defendant maliciously procured an order of the justice of the peace committing plaintiff to the custody of the sheriff, for failure to give a recognizance to appear as a witness, on appeal of said cause, at a future term of the circuit court, under 3 Comp. Laws, § 11856, the order being a nullity and the imprisonment unlawful, it was not a defense to the aotion that plaintiff might have given the recognizanoe and escaped the imprisonment.</p> <p>2. Trial — Argument—Harmless Error.</p> <p>Argument of counsel to the effect that the jury might consider, in determining the question of damages, what they would have been entitled to under the same circumstances, although improper, was not reversible error, where the court interrupted counsel and stated the proper rule, and though plaintiff’s attorney persisted in his statement, no further objection was taken, no request to charge on the point was presented, and the verdict was not excessive or against the evidence.</p> <p>8. Appeal and Error — Record—Correction.</p> <p>On error, this court cannot revise the bill of exceptions which the trial judge corrected so as to differ from the stenographer’s minutes of the charge and in accordance with the judge’s recollection of the instructions actually given.</p> <p>4. False Imprisonment — Damages—Humiliation.</p> <p>It was competent to receive in evidence testimony of the annoyance, etc., suffered by plaintiff in connection with evidence tending to show defendant’s malice.</p> <p>5. Evidence — Docket of Justice of the Peace.</p> <p>The petty nature of the charge on which defendant was tried might properly be proved from the docket entries of the justice.</p> <p>6. Damages — Expense op Procuring Release prom False Imprisonment.</p> <p>The costs and expenses of proceedings in habeas corpus, instituted by plaintiff to procure his release from commitment under the illegal order of the justice, was an element of damages recoverable in an action of false imprisonment.</p>