Volume 170 — Michigan Reports

Case by Clyde Elton Love, administrator of the estate of Frank Emerick Love, deceased, against the Detroit, Jackson & Chicago Railroad Company for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

Case by Clarence A. Fellows against Frank E. Stevens and Julius A. Ziesse, copartners under the name of the Phoenix Heating & Sprinkling Company, for personal injuries. Judgment for plaintiff. Defendants bring error.

Bills by the Security Trust Company, trustee of the estate of Frank P. Glazier, bankrupt, against Henrietta M. Glazier and others to set aside certain assignments of insurance policies as fraudulent. From a decree for defendants, complainant appeals.

Petition by Alice Davis Pingree in a divorce proceeding wherein petitioner was complainant against Hazen'S. Pingree, Jr., for the modification of the final decree in said cause awarding complainant alimony. From a decree for petitioner, defendant appeals.

Assumpsit by William E. Roney against Daniel J. Healy for services rendered as defendant’s broker in procuring a loan. A judgment for plaintiff for less than the amount claimed is reviewed by him on error.

Bill by Andrew Rohrabacher and others against Mike Walsh and others for a decree in aid of execution, discovery of assets, and other relief as judgment creditors. From a decree for complainants, both parties appeal.

Case by Anna Habitz, as administratrix of the estate of Ferdinand Habitz, deceased, against the Wabash Railroad Company for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.

<p>Divorce — Alimony—Homestead.</p> <p>Six hundred dollars in cash and a homestead worth $2,100, held by the entireties, with the household furniture, was sufficient to allow to complainant who had not aided in accumulating any of her husband’s property, which in the aggregate was not worth more than $5,675.</p>

Oase by Martha Y. Wavle, administratrix of the estate of Charles Wavle, deceased, against the Michigan United Railways Company for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.

Case by Angelo F. Mollica, administrator of the estate of Vincent Mollica, deceased, against the Michigan Central Railroad Company 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.

Case by L. May Gates as administratrix of the estate of Frank M. Gates, deceased, against Alfred H. Béebe for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

Lucian G. Goodenough presented his final account as executor of the estate of David J. Morse, deceased, to the probate court of Genesee county, and the same was allowed and an order of distribution made. From said order Donna Winifred Caldwell, claimant of a part of the property in said executor’s hands, appealed to the circuit court. Judgment for claimant; the executor and distributees of said estate appeal.

<p>Divorcie — Alimony—Release oe Dower.</p> <p>On appeal from a decree of divorce awarding the wife alimony, the order is affirmed with the modification that complainant be required to relinquish dower in defendant’s real estate. Act No. 259, Pub. Acts 1909.</p>

<p>Partition by Etta Vogt against Ida Vogt Cottier and others. Part of the defendants appeal. On motion to dismiss.</p>

Mandamus by the Coldwater Copper Mining Company against Edwin Gillis to compel respondent to deliver to relator’s secretary its books and other property. An order granting the writ is reviewed by respondent on certiorari.

<p>Error to Newaygo; Cogger, J.</p> <p>Clyde Bowen was convicted of murder in the second degree.</p>

<p>1. Criminal Law — Trial—Challenges.</p> <p>Joint respondents tried together on a criminal charge are each, entitled to five peremptory challenges, as if they were tried separately. 3 Comp. Laws, § 10238.</p> <p>2. Same — Statutes—Waiver.</p> <p>The election of respondents to be tried jointly instead of separately, under 3 Comp. Laws, § 11956, does not waive their right to challenge five talesmen each.</p>

Exceptions before sentence from Calhoun; North, J. George Osborn was convicted of illegal voting. Respondent is unmarried, 27 years of age, and, born in Canada, is a naturalized citizen of the United States. His father, an itinerant Methodist clergyman, is not a citizen of the United States, though living in Michigan.

Exceptions before sentence from Jackson; Parkinson, J. Ludwig Schneider was convicted of violating the local-option statute. The information filed against respondent charges him with offending the provisions of section 37 of Act No. 291 of the Public Acts of 1909, in that he has attempted to open up and establish a new saloon and bar having its front entrance within 400 feet along the street line from the front entrance of a church.

<p>1. Trial — Jury—Credibility of Witnesses — Voir Dire Examination — Criminal Law.</p> <p>In a prosecution for larceny, no error was committed by the trial court, on the examination of the jurors by respondent’s counsel, in excluding questions as to any opinions the jurors may have formed concerning the credibility of the complaining witness from testimony which he gave in a previous trial, when the record contained only part of such examination, and did not show what examination was actually permitted.</p> <p>2. Same — Criminal Law — Challenges.</p> <p>Respondent, not having exhausted his peremptory challenges, was not prejudiced by the fact that four jurors, who sat in the trial, had been jurors in a previous prosecution against a woman charged with keeping a house of ill-fame, wherein the complaining witness, and other proposed witnesses against respondent, had given evidence.</p>

Exceptions before sentence from Marquette; Elannigan, J. Gust Ekola was convicted of being accessory to the indecent exposure of the person of a patron of respondent’s saloon.

<p>Error to Presque Isle; Emerick, J.</p> <p>Thomas Harrison was convicted of manslaughter.</p>

Bill by Roswell R. Robinson against the De Luxe Motor Car Company of New Jersey and others for an accounting. From a decree overruling a demurrer to complainant’s bill, defendants appeal.

<p>1. Criminal Law — Embezzlement of Promissory Note —Larceny — Negotiable Instruments.</p> <p>The maker of a promissory note may be güilty of its laroeny or embezzlement from the payee to whom he has delivered it, although his indebtedness is unaffected by such act.</p> <p>2. Same — Delivery of Note as Payment.</p> <p>Respondent, who was charged with embezzlement of a note executed and delivered by him to the payee, was rightly found guilty of embezzling the property of such payee, under testimony showing that the payee bought of him some lambs to be delivered later, surrendering said note to respondent to be applied on the price of the lambs, that the lambs did not belong to respondent, but to his wife, and they were later disposed of to other parties, and that respondent refused to return the note or pay it, and claimed to have satisfied the indebtedness.</p> <p>8. Same — Trial—“Feloniously.”</p> <p>The instruction by court to jury at the trial of respondent that embezzlement meant the wrongful or fraudulent appropriation to one’s use of money or goods left in his possession by another, that the respondent should not be found guilty unless he intended when he took the note to deprive the payee of its value, and unless intent to wrong was present no crime was committed, sufficiently defined the offense under 3 Comp. Laws, § 11570, without using or explaining the word “feloniously.”</p> <p>4. Same — Words and Phrases.</p> <p>“ Feloniously” imports that an act was done with an unlawful and wicked intent, or with purpose to commit a crime.</p>

Bill by Wilber W. Steele against Allaseba M. Bliss and Lorenzo T. Durand, executors of the estate of Aaron T. Bliss, deceased, et al., for an injunction and other relief. From an order overruling demurrers to the bill of complaint, defendants appeal.

, presiding. Bill by George Gallup. against the city of Saginaw and others for an injunction to restrain defendant from revising its charter. From a decree for defendants, complainant appeals.

Bill by the Union City Lumber Company against the Traverse City, Leelanau & Manistique Railroad Company and others for the enforcement of liability of certain stockholders. From a decree in favor of part of defendants, complainant appeals.

<p>1. Process — Service—Joint Defendants.</p> <p>Where plaintiff caused a summons to be issued against several joint defendants, and after service had been made upon several of them, and after the sheriff’s return showing such service, plaintiff caused an alias summons to be issued to the sheriff of another county, where one of the defendants was found and served, the objection that the original summons ■ was returned before service upon certain defendants, and before the return day thereof, amounted merely to an irregularity of which plaintiff alone could complain. Act No. 235, Pub. Acts 1901.</p> <p>,2. Fraud — Sales—Bills and Notes — Waiver.</p> <p>Purchasers of a stallion who made no claim of fraud for upwards of four years after delivery of the animal, could not, after its death, defend an action on promissory notes in the hands of indorsers, for false representations as to the condition or quality of the stallion.</p> <p>3. Same — Rescission— Sufficiency.</p> <p>And their request, made at the end of the season to the vendor, to replace the animal in pursuance of his warranty in writing, given at the time of making such contract, was not a rescission, but an affirmance, of the sale.</p>

Bill by Levi J. Calkins and others against Calvin M. Rice, director of the school district of Bingham and Bengal townships, Clinton county, and others, for an injunction and further relief. From a decree for complainants, defendants appeal.

<p>Error to Kent; McDonald, J.</p> <p>Case by Henry Bernard against the Grand Rapids Paper Box Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Landlord and Tenant — Rent—Defenses—Eviction.</p> <p>The eviction of a tenant from a part of demised premises, either by the landlord or by title paramount, bars the landlord’s rights to any of the .rout.</p> <p>2. Same — Partial Dispossession.</p> <p>To leave rubbish on the tenant’s premises and to construct a stairway outside a barn on the leased premises and to permit the public to pass over the leased land, to gain access to an apartment above, operated as such eviction.</p> <p>3. Same — Waiver.</p> <p>Payment of rent for a number of months thereafter and retention of possession did not waive the tenant’s right to defend against an action for rent.</p> <p>4. Same — Lease—Description.</p> <p>Under alease describing the premises as “dwelling house No. 471, located on the west side of Lincoln avenue,” the tenant acquired a right to so much of the lot as was necessary to the complete enjoyment of the building as a dwelling, including all the lot not occupied by a barn that opened on adjacent premises.</p> <p>5. Same — Waiver op Tenant’s Right.</p> <p>Plaintiff’s claim, supported by testimony, that defendant expressly waived his rights and assented to plaintiff’s action; also that defendant impliedly waived them by doing plumbing in the barn, defendant disputing the claim, should have been submitted to the jury under proper instructions.</p>

<p>Error to Montcalm, Davis, J.</p> <p>Assumpsit by Hazel B. Chalmers against School District No. 1, Reynolds Township, for salary as a teacher. Judgment for plaintiff. Defendant brings error.</p>

George A. Pritch was convicted of manslaughter. . It is alleged in the information that on the 27th of August, 1909, at the city of Detroit, the respondent— “With force and arms in and upon one Maybelle Mill-man, in the peace of the people of the State of Michigan, then and there being, wilfully did make an assault and then and there wilfully did use and employ a certain instrument or instruments, the name or names of which are as yet unknown, and other means, the exact…

Case by Ella McDonnell, administratrix of the estate of Michael McDonnell, deceased, against the Central Drug Company for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.

<p>1. Mines and Mining — Landlord and Tenant — Negligence.</p> <p>It was some evidence of negligence that a mining corporation, having property two by three miles in extent for a period of ten years and upwards, left a partially concealed and overgrown pit or abandoned portion of its mine uncovered and unguarded, upon a common about 300 feet from the highway and a fourth of a mile from houses which the corporation rented, notwithstanding that no officers of the company knew of its existence.</p> <p>3. Same — Trespass—License.</p> <p>The fact that children of such tenants were accustomed to traverse the common, which was unfenced, being known to defendant’s officers, who raised no objection, imposed a duty on defendant to warn the tenants of any existing dangers known to them or discoverable in the exercise of reasonable care; and plaintiff’s son, who fell into the pit while searching for wood, was not a trespasser but a licensee.</p>

<p>1. Amendment — Declaration—Assumpsit.</p> <p>Upon the trial of an action for breach of a contract of agency for the sale of electric automobiles, the court was within its discretion in permitting an amendment to plaintiff’s declaration so as to allege that defendant fraudulently canceled said contract, which, by its terms, was terminable by defendant, if it should become dissatisfied, although its oficiáis had repeatedly expressed satisfaction with plaintiff’s performance; also an amendment increasing the claim of damages; defendant making no claim of surprise and not requiring further time in which to meet the facts so added.</p> <p>2. Contracts — Principal and Agent —Satisfaction —Words and Phrases.</p> <p>The question of defendant’s good faith in terminating plaintiff’s contract of agency, which provided that the plaintiff should conduct the agency satisfactorily to defendant, was properly submitted to the jury on testimony, disputed by defendant, that it was satisfied with plaintiff’s efforts to perform and fraudulently exercised its option to annul the contract.</p> <p>8. Same — Performance.</p> <p>But it was entirely within defendant’s judgment whether the acts done and performance attempted were in fact satisfactory, and the justice of such conclusion could not be inquired into by a jury.</p> <p>4. Same — Trial—Evidence of Motive.</p> <p>After the amendment allowed by the trial judge so as to have the declaration aver bad faith in claiming dissatisfaction with the attempted performance of the agency contract, defendant was entitled to recall its principal witness and show its good faith in canceling plaintiff’s rights.</p> <p>5. Damages — Prospective Profits — Speculative Damages. •</p> <p>A verdict of $23,474.16 was excessive and improperly based on evidence of the prospective profits, which plaintiff claimed he might have made but for the wrongful termination of his contract for an automobile agency, where he had no established business in the machines which he purposed to sell and which had no market, being new and untried, and where the contract provided that defendant might terminate the relation whenever it became dissatisfied.</p>

Jesse M. Hatch presented to the board of supervisors of Calhoun county his claim for services performed. From, the disallowance thereof by the board, claimant appealed to the circuit court. Judgment for defendant upon a directed verdict. Claimant brings error.

Ejectment by the Stearns Salt & Lumber Company against Andrew Newberg, to try title to real property. A judgment for plaintiff upon a verdict directed by the court is reviewed by defendant on writ of error.

<p>1. Competency — Assignment of Mortgage — Estates of Decedents.</p> <p>Where at the time of assigning a mortgage constituting practically his entire estate to one of his sons, the grantor had sufficient mental capacity to understand the business in which he was engaged, knew and understood the extent and the value of his property and how he wanted to dispose of it, and was able to keep the facts in mind long enough to plan and effect the conveyance ini question, without prompting and interference from others, his act was valid.</p> <p>2. Estates of Decedents — Fraudulent Conveyances — Testamentary Disposition of Estate — Debtor and Creditor.</p> <p>As to one son whom decedent owed a sum of money, the transfer of nearly all decedent’s property without consideration, was invalid.</p> <p>3. Judgment — Res Judicata — Estates of Decedents.</p> <p>The allowance against decedent’s estate by commissioners on claims, from whose finding no appeal was taken, of an indebtedness to one of decedent’s sons, conclusively established decedent’s indebtedness to the claimant.</p> <p>4 Same — Intervening Parties — Executors and Administrators — Equity.</p> <p>It is within the province of the court of equity, on appeal, to enter a decree against the assignee of the mortgage in whose suit for foreclosure the administrator of the assignor’s estate intervened by answering defendant’s cross-bill, and by going to hearing without objection on the contention of the estate that the assignee of such mortgage took the same subject to the expenses of administering said assignor’s estate. Act No. 326, Pub. Acts 1905.</p>

Bill by the Lowrie Sc Robinson Lumber Company against the Campbell Avenue Methodist Episcopal Church and others for the enforcement of a mechanic’s lien. From an order sustaining a plea to the bill of complaint, complainant appeals.

Assumpsit in justice’s court by Antoine Labadie and another against James G. Perry for work, labor, and materials. Defendant appealed to the circuit court from a judgment for plaintiffs. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.

Case by Clarence Barfoot against the White Star Line for personal injuries. Judgment for plaintiff. Defendant brings error. Plaintiff stepped into the shaft of a freight elevator and was injured.

<p>Criminal Law — Trial—Appeal and Error.</p> <p>Respondent, charged with a-violation of'Act No. 237, Pub. Acts 1899, did not have a proper trial, and his conviction could not be reviewed on error upon a verdict of guilty, directed at the close of the evidence of the people, as requested by respondent and the prosecuting attorney, for the purpose of having this court pass on certain questions; the action of the court constituted a mistrial.</p>

, presiding. Bill by George Fraam against Chester F. Covell and others for an injunction and other relief. From a decree for complainant, defendants appeal.

Bill by Emma C. Hockenberry against Robert Donovan, administrator of the estate of Clinton Hockenberry, deceased, and others, for the cancellation of an antenuptial contract of settlement, for alleged fraud. From a decree for defendants, complainant appeals.

, presiding. Case by Bernice Harris, by her next friend, against Peter Crawley for personal injuries. Judgment for defendant. Plaintiff brings error.

<p>1. Libel and Slander — Ridicule Libelous Per Se — Newspapers — Demurrer.</p> <p>On demurrer, plaintiff’s declaration charging that defendant, with the purpose of bringing plaintiff into ridicule and contempt, published an article stating that plaintiff was not going to marry a person named, who was a notorious drunkard and had been frequently imprisoned in jail therefor, that plaintiff stated she was not going to marry such person, that rumors of such engagement existed and were set at rest by plaintiff, all tending to bring plaintiff into ridicule and contempt, further charging that an alleged retraction, of similar import, was later published by defendant, as set out in full in the pleading, for the same purpose, and that such statements were false, that no rumor of plaintiff’s engagement existed, constituted a sufficient allegation of plaintiff’s cause of action for libel.</p> <p>2. Same.</p> <p>Articles tending to bring a person into shame, contempt, and derision in the community are libelous per se.</p> <p>3. Same — Declaration—Innuendo-</p> <p>Whether such articles would bear the construction placed upon them, and whether the innuendoes, colloquium, and inducement were true, were questions for the jury.</p>

<p>Appeal from Kent; McDonald, J.</p> <p>Bill by K. Ludwig Schliess against Franklin M. Thayer and Alice M. Thayer, in aid of execution. From a decree for defendants, complainant appeals.</p>

Bill by the People’s Outfitting Company against the People’s Outlet Company for an injunction to restrain the use of defendant’s corporate name. Prom an order overruling a demurrer to complainant’s bill, defendant appeals.

<p>Appeal from Bay; Collins, J.</p> <p>Bill by Charles Dehn against Carl O. Dehn to quiet title to real property. From a decree for complainant, defendant appeals.</p>

<p>Case-made from Jackson; Wiest, J., presiding.</p> <p>Assumpsit by Catherine Brown against the People’s National Bank upon a draft made to plaintiff whose name was forged and the funds drawn by her attorney. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.</p>

Case by John E. Eolkmire, administrator of the estate of Minnie W. Folkmire, deceased, against the Michigan United Railways Company for the unlawful killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

Case by Harriet Stanton against the township of Webster, for personal injuries. A judgment for defendant upon a verdict directed by the court is reviewed by plaintiff on writ of error. One of the highways in defendant township ran through a ravine or low place, and in this ravine the traveled part of the highway — the roadway — was constructed on an embankment, through which, in the fall of the year 1909, a culvert was laid; the approaches thereto being newly graded.

Mandamus by Richard F. Lanagan to compel George P. Codd, one of the circuit judges of Wayne county, to set aside an order permitting another solicitor to be substituted for relator in litigation pending before said court.

<p>1. Carriers —Alighting from and Boarding Cars — Personal In juries — N egligenoe.</p> <p>Plaintiff’s judgment of $1,500 for personal injuries sustained in alighting from defendant’s street car which plaintiff, supported by one witness, claimed started too'soon, but which three witnesses testified did not stop at the crossing at which plaintiff tried to' alight, was properly allowed to stand, on motion for new trial, after three trials wherein the several juries rendered verdicts for plaintiff.1</p> <p>2. Same.</p> <p>The fact that the trial court indicated an opinion that the verdict is contrary to the weight of the evidence, where he refuses a new trial, is not controlling.</p> <p>3. Same — Damages—Verdict.</p> <p>The amount of plaintiff’s verdict for injuries to her skull requiring the removal of a piece of the bone and for shock to her nerves, was not so excessive as .to warrant the court in granting a new trial.</p> <p>4. Evidence — Former Testimony.</p> <p>Proof of inability to find a witness at his former address or to find his name in the city directory was not so full and convincing as to warrant the appellate court in reversing the discretion of the trial judge who excluded his testimony given on a former trial.</p> <p>5. Same — Instructions to Jury — Trial.</p> <p>There was no error on the part of the court in refusing to instruct the jury that there was an entire absence of proof of the conductor’s signaling the motorman to start the car, when the declaration counted on negligence of both conductor and motorman in starting the car.</p>

Case by Delphis Drouillard against tbe Detroit United Railway for personal injuries. A judgment for defendant upon a verdict directed by tbe court is reviewed by plaintiff on writ of error.

Case by Anna Johnson against Philip Grondin and the Michigan Bonding & Surety Company for illegal sales of liquor to plaintiff’s husband. Judgment for plaintiff, defendants bring error.

Case by Sielma Minkstimas against J. Boyd Pantlind for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>1. Appeal and Error — Directing Verdict — Trial.</p> <p>In reviewing, on error, a verdict directed against claimant, who presented a claim against the estate of his deceased and divorced wife, his evidence is entitled to its greatest probative force.</p> <p>3. Estates op Decedents — Revival op Commission on Claims— Executors and Administrators.</p> <p>Revival of the commission on claims of a decedent’s estate is a matter of right before the estate is closed; the petition need only show that fact and that petitioner is a creditor whose claim has not been passed on by the commission. On the trial, claimant’s right to revive such commission was not a proper issue, although defendant charged that the order was fraudulently obtained.</p> <p>3. Same — Evidence.</p> <p>The court erroneously directed a verdict for defendant estate on testimony tending to show an agreement of decedent with claimant to repay him what he might expend in keeping up a life insurance policy upon her father’s life, on evidence showing by her admissions a oontract to settle the matter by paying him $1,200 after he had kept up the premiums for a number of years.</p> <p>4. Same — Insurance—Husband and Wipe.</p> <p>Where claimant agreed with the member of a mutual benefit society to keep up his insurance, paying all premiums thereon, in consideration of insured making claimant’s wife the beneficiary under the policy, and where the wife also promised to repay her husband from the proceeds of the policy, on which he paid about $1,200, the wife acquired a vested interest in the policy which the law will protect, and the insured could not change beneficiary so as to deprive her of rights under the policy, although it provided for change of beneficiary at the option of insured.</p> <p>5. Same — Separate Estate op Wipe — Contracts.</p> <p>Such interest or equity related to the wife’s separate estate, and a contract to reimburse her husband for sums paid on the premiums was valid.</p> <p>6. Same.</p> <p>The husband, who was prevented by divorce from the wife and by imprisonment for crime from completing his agreement, could recover as on a quantum meruit tor the sums he paid in part performance of the contraot, after the policy had been paid to his wife.</p> <p>7. Same — Evidence.</p> <p>Averments contained in a bill for divorce filed by decedent against claimant were not competent evidence of the relations existing between claimant and his wife, and such relations were immaterial to the issue.</p>

Clair; Law, J. Bill by Florence Halliday and others against George Basel for an accounting. From a decree allowing defendant’s account as filed, complainants appeal. Defendant George Basel is the father of the complainants, seven in number.

Assumpsit by Edwin T. Shurlow against John E. Lewis and other stockholders of the Michigan Southern Brick & Tile Company for work, labor and services performed for said corporation. Judgment for plaintiff. Defendants bring error.

Rill by Joseph Reis and others against Isaac Applebaum and others for fraud and other wrongful conduct in the incorporation of the Detroit, Flint & Saginaw Railway Company. From an order sustaining a plea to complainants’ bill, defendants appeal.

<p>Appeal from Muskegon; Sessions, J.</p> <p>Bill by John Williams against Orin T. Bolt and others for an accounting and redemption from a deed given as security for a loan. From a decree for defendants, complainant appeals.</p>

Mandamus by Jan Schmedding against the Northern Assurance Company to secure relator’s reinstatement under a policy of insurance. An order granting the writ is reviewed by respondent on writ of certiorari.

Trover and case by Ernest C. Reed against LaMott R. McOready for the conversion of a promissory note. Judgment for plaintiff. Defendant brings error.

<p>Negligence — Dentists — Malpractice — Physicians and Surgeons.</p> <p>Evidence that plaintiff had a number of teeth pulled by defendant, -who, after the operation, assured her that apparent inability to close her j aw would pass off in a short time; that plain • tiff, eight days later, being unable to close her mouth, again consulted defendant, who advised her the jaw was not dislocated, that it was shortly afterwards found by another physician to be dislocated and was treated and cured; that such dislocation can be detected by an ordinarily skillful physician, was sufficient to require the submission to the jury of the question of defendant’s negligence in failing to discover the dislocation on her second visit, the testimony of plaintiff being disputed by that of defendant.</p>

Case-made from Jackson; Parkinson, J. Assumpsit by Andrew W. Weber against Fred R. Draper and others, as directors of the B. R. Parrott Company, a corporation, for a debt of the corporation under Act No. 137, Pub. Acts 1907. A judgment for defendants is reviewed by plaintiff on case-made.

<p>Appeal from Monroe; O’Mealey, J.</p> <p>Bill by Leonora Sullivan against Daniel F. Sullivan for divorce. From a decree for complainant, for insufficient alimony, she appeals.</p>

<p>Appeal from Wayne; Murfin, J.</p> <p>Bill by Helena Krusinski against Wladislaus Krusinski for divorce. From a decree dismissing complainant’s bill, she appeals.</p>

Mandamus by Annie Ostrowski against Joseph W. Donovan, one of the circuit judges for the county of Wayne, to require respondent to vacate an order denying relator’s motion to amend a judgment entry.

Mandamus by Floyd Lapham against George W. Smith, Oakland circuit judge, to compel respondent to grant an application for the discharge of relator from custody under a body execution.

Bill by Mary Prybeski and another against Anton Piechoviak for an accounting and to redeem from a land contract as from a mortgage. Prom a decree for complainants granting less than the relief claimed, they appeal. On August 23, 1905, complainants were the owners in fee simple of the land in question in this suit.

Appeal by Anastasia Goodell from an order of the probate court of Alpena county assigning to Casimir Yezerski and Elizabeth Blavet the estate of Anna Cameron, deceased. Judgment for appellees, and said Anastasia Goodell brings error.

Bill by Richard H. Hackett against Martha A. Kenning and others in aid of an ezecution at law. From an order overruling a demurrer to complainant’s bill, defendant Martha Kenning appeals. On January 21, 1910, defendant John E. Kenning was the owner in fee simple of a certain piece of real estate. On that day he and his wife, Martha A. Kenning (defendant), joined in a mortgage to defendant Kent State Bank upon which it is claimed $5,000 is due.

Assumpsit by Mamie E. Crawford, assignee of John Crawford, against Beattie W. Calkins and another for commissions due for services performed by plaintiff’s assignor. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.

Attachment by the Grand Haven Military Club in justice’s court against Arthur Mulholland. Defendant removed said cause to the circuit court by certiorari. Judgment for plaintiff and defendant brings error.

<p>Certiorari to Wayne; Mandell, J.</p> <p>Moses Oppenheimer was found guilty under the bastardy law, and brings certiorari.</p>

<p>1. Criminal Law — Information—Duplicity—Assault.</p> <p>An information charging an assault upon two persons, by shooting and wounding them, is not bad for duplicity, and may be sustained by proof of assault upon one of them.</p> <p>2. Same — Self-Defense—Prior Quarrels. '</p> <p>No question of self-defense being involved in a proseoution for assault with intent to do great bodily harm, affirmative testimony tending to show threats or offensive conduct of the assailed person on occasions prior to the one in question were inadmissible on behalf of the defense.</p> <p>3. Same.</p> <p>However, testimony as to the previous relations of the parties was properly elicited, on cross-examination of the complaining witness, whose fairness and credibility was a proper subject of inquiry; it was error to instruct the jury not to consider it.</p> <p>4. Same — Assault With Intent to Do Great Bodily Harm — Lesser Offenses.</p> <p>The court erred in refusing respondent’s request to instruct the jury that the offense included the lesser degrees of assault, of which the jury might find respondent guilty, i. e., assault and battery and simple assault.</p> <p>5. Same — Intent—Conduct of Court.</p> <p>The question of respondent’s felonious intent being for the jury, it was error to submit to the jury respondent’s claim that his mind was so confused by the controversy with complaining witness and weakened by a previous sunstroke and by ill health that he was unable at the time to form a oriminal intent, in the following language: “I believe he claims on this particular occasion he was suffering from that malady and that condition and was not conscious of what he did. It is for you to say and that is an important thing for you to determine in this case. There is not much but this condition and intention in dispute. It is for you to say whether or not a man who is laboring so under a diseased condition of mind and body, or both, that he would not be intelligently conscious of what he did and its probable results, and whether a man in that frame of mind would say to his wife who had the gun, ‘Don’t shoot,’or ‘Don’t fire,’ and then go to her and take the gun and fire. It is for you to say whether a man who was in the exercise of his natural functions would say to those men who were driving away from him, ‘ Halt! halt!’ and then, when they did not halt, immediately fire upon them. It is for you to say whether the gun went off unconsciously the first time, and, if so, whether it went off unconsciously the second time. It is for you to say, if it went off unconsciously, whether it unconsciously hit the mark both times,” etc.</p> <p>6. Same — Conduct of Court.</p> <p>The trial judge is precluded from intimating to the jury his views as to the merits of the case.</p>

Case-made from Jackson; Parkinson, J. Assumpsit by Jennie BIosb and others against the board of supervisors of the county of Jackson for a sum of money paid to said county out of the estate of William Wooley, deceased. A judgment for defendant sustaining a demurrer to plaintiffs’ declaration is reviewed by plaintiffs on writ of error.

.Mandamus by the Booth Fisheries Company against Frank Emerick, Alpena circuit judge, to compel respondent to vacate an order settling issues on a motion made in certain actions pending in said circuit.

Joseph; Yaple, J. Bill by Charles C. Bateman and others against Fred H. Case, executor of the estate of Harriet M. Bateman, deceased, for the construction of the will of David M. Bateman, deceased. From a decree for complainants, defendant appeals.

, presiding. Bill by the Continental National Bank of Chicago, Illinois, and Edward Hines Lumber Company against John C. Fleming, Cyrus A. Barker, the Garth Lumber & Shingle Company, and other defendants, for the foreclosure of a mortgage. From a decree for complainants, defendants the Garth Lumber & Shingle Company and Cyrus A. Barker appeal.

, presiding. Bill by Robert J. Lounsbury, administrator de bonis non, with will annexed, of the estate of Noah Tyler, deceased, against trustees of Square Lake Burial Association, Luther W. Fisher, executor of the estate of Mary Tyler, deceased, Carrie Fletcher, Charles Miller, William Miller, Noah Brown, and Albert Fletcher, special administrator of the estate of Joseph Miller, deceased, to obtain a construction of the will.

Habeas corpus by Elvin W. Crane. 3 Comp. Laws, § 8658, reads as follows: “ The court granting a decree of divorce may provide in such decree that the party against whom any divorce is granted shall not marry again within such time as shall be fixed by the court, which time shall be set out in the decree: Provided, that such time shall not exceed the period of two years from the time such decree is granted.

Mandamus by Edmund C. Vernier against the common council of the village of Grosse Pointe Shores, to compel respondents to grant relator’s application for a license to engage in the retailing of intoxicating liquors. An order granting the writ is reviewed by respondents on certiorari.

Bill by Alma Bearinger against William Bearinger for divorce. From a decree for defendant, on his answer in the nature of a cross-bill, awarding alimony to complainant, both parties appeal.

Bill by George Allen and another against Gash W. Talbot for the rescission of a land contract. From a decree for complainants, defendant appeals.

<p>1. Criminal Law — Evidence—Rape—Unohastity of Complaining Witness — Impeachment.</p> <p>Cross-examination, on a trial for statutory rape, tending to show that the complaining witness, a female under 16 years of age, had made false accusations of criminal relations with other men in the community than respondent, and had subsequently admitted the falsity of her charges, was improperly excluded on the ground that her chastity was not in issue; the evidence was competent to affect or impeach her credibility.</p> <p>2. Same — Trial—Jury</p> <p>And the court erred in refusing to permit a brother of one of the jurors to testify relative to respondent’s good character; witness’ relationship did not affect his competency as a witness, nor did the fact that other witnesses were sworn to the same point meet the objection or cure the error.</p>

Exceptions before sentence from Ionia; Davis, J. Robert B. Bell was convicted of keeping a place where intoxicating liquors were sold or dispensed in violation of the local-option law.

<p>Error to the recorder’s court of the city of Detroit; Phelan, J.</p> <p>Helen Bryan was convicted of larceny.</p>

Mandamus by George M. Haney and another to compel Philip Padgham, Allegan circuit judge, to approve an appeal bond and settle a record on appeal.

Mandamus by the Union Trust Company against the common council and assessors of the city of Detroit to compel respondents to deduct from relator’s assessed property the value of certain mortgages and other credits of relator. An order granting the writ is reviewed by respondents on certiorari.

Mandamus by the Detroit Trust Company against the common council and assessors of the city of Detroit to compel respondents to deduct from relator’s assessed property the value of certain mortgages and other credits of relator. An order granting the writ is reviewed by respondents on certiorari.