Volume 172 — Michigan Reports

<p>Error to Wayne; Hosmer, J.</p> <p>Assumpsit by Frederick E. McCain as executor of the estate of Edmund S. McCain against Angus Smith for services rendered. Judgment for defendant. Plaintiff brings error.</p>

Bill by the Murphy Chair Company and James F. Murphy, trustee, against the American Radiator Company and the Wabash Railroad Company for an injunction and a construction of certain conflicting grants of easement. From the decree complainants appeal.

J., presiding. Assumpsit by Almeron Whitehead and George H. Mitchell, copartners, under the name of Exchange Bank, Birmingham, Mich., against William J. Purdy upon a promissory note. Judgment for plaintiffs upon a directed verdict; defendant brings error.

<p>Taxation — Remedy of Taxpayer — Board of Review — Exhausting Remedies — Illegal Tax — Assessment.</p> <p>Before resorting to the courts to recover taxes on the theory that property of another was fraudulently omitted from the tax roll or undervalued, the taxpayer must exhaust the remedies given him by law, as appearing before the board of review and complaining that other property was assessed too low, or omitted from the roll; so that plaintiff in such action to recover taxes paid under protest was estopped by failure to make timely objection before the board of review to which he appealed, but at the same time stated that he did not care to attack the undervaluation of corporate property of another taxpayer. Brooke, Steere, and MoAlvay, JJ., dissenting.</p>

<p>Error to Eaton; Smith, J.</p> <p>Trespass by Edwin O. Carman against Eugene Scott for forcible entry and eviction. Judgment for plaintiff. Defendant brings error.</p>

A. Leroy Brown was convicted of operating a moving picture show without a license contrary to the prohibition of an ordinance of the city of Lansing.

Assumpsit by Max H. Weinberg against De Forrest A. Stratton for wages of one of defendant’s employés assigned orally to plaintiff. Judgment for defendant. Plaintiff brings error.

Assumpsit by Franc C. Hause, executor of the estate of John Hause, deceased, against the Standard Accident Insurance Company upon a policy of accident insurance. Judgment for plaintiff. Defendant brings error.

Case by Mary Sloan against the Detroit United Railway and the Detroit Creamery Company for personal injuries. A judgment for defendants- upon a verdict directed by the court is reviewed by plaintiff on writ of error.

Bill by tbe Security Savings Bank & Trust Company against the St. Louis Chemical Company and another for the foreclosure of a trust mortgage. From a decree denying petitions of Martha H. Wright and others claiming an interest in the resulting fund as bondholders, petitioners appeal.

Case by the Eesley Light & Power Company against the Commonwealth Power Company for negligent interference with plaintiff’s water rights. Judgment for plaintiff. Defendant brings error.

Case by Guiseppi Yanelli against Fred Littlejohn for fraud and deceit in the sale of real property. Judgment for plaintiff. Defendant brings error.

Case by George Rattenbury and another against tbe Pere Marquette Railroad Company for tbe negligent killing of two borses owned by plaintiffs. Judgment for defendant upon a directed verdict. Plaintiffs bring error.

Case by Gustava Rauhala against John Maki and others for illegal sales of intoxicating liquors to plaintiff’s husband. Judgment for plaintiff. Defendants bring error.

Mandamus by Howard O. -Messmore against William F. Kracht to compel relator to sign and deliver to relator an order for money allowed to relator on a claim presented to the board of supervisors. An order denying the writ is reviewed by relator on certiorari.

Assumpsit by Giotto Hollingshead and another against Isaiah S. Morris for breach of a contract or option for the sale of real property. Judgment for plaintiffs. Defendant brings error.

Bill by the city of Detroit against the Detroit United Railway for an injunction and other relief. Defendant filed a cross-bill. From a decree granting partial relief, both parties appeal.

Assumpsit by Theodore Schmidt against B. Lee Pegg upon certain promissory notes. A judgment for defendant upon a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Appeal from Muskegon; Sessions, J.</p> <p>Bill by Thomas J. Harris against Etta Brown to foreclose a vendor’s lien. From a decree for complainant defendant appeals.</p>

Mandamus by Clarence J. Stockwell against Clement Smith, Eaton circuit judge, to compel respondent to set aside an order denying relator an extension of time in which to perfect his appeal.

Mandamus by the Clairview Park Improvement Company of Grosse Pointe, Limited, against George S. Hosmer, one of the Wayne circuit judges, to compel respondent to vacate orders denying a new trial to relator in certain ejectment proceedings in which relator was plaintiff.

<p>Appeal from Huron; Beach, J.</p> <p>Bill by Addie Smith against Robert Smith for divorce. From a decree for defendant, complainant appeals.</p>

<p>Error to Ottawa; Padgham, J.</p> <p>Ejectment by the West Michigan Park Association against the Pere Marquette Railroad Company and another. Judgment for defendants. Plaintiff brings error.</p>

Bill by Sylvester Nelson against Stephen Wiggins and others for the cancellation of certain deeds. From a decree for defendants, complainant appeals.

Eminent domain proceedings by the Michigan Central Railway Company against Edwin Miller and Burr Lobdell to take private property for railroad purposes. From a verdict for petitioner awarding damages, respondents appeal.

<p>1. Amendment — Pleading—Equity — Divorce — Bill oe Complaint.</p> <p>The question of amendments to a bill for divorce being one that addresses itself to the court’s discretion, this court will not reverse a cause in which the bill alleged generally and , without sufficient particularity the facts upon which complainant relied, where, upon objection being made at the hearing, complainant’s solicitor offered to file an amended pleading covering the objections, but did not .do so until the proofs were all closed; the trial court offering defendant such additional time as he might require to meet the amended averments.</p> <p>2. Divorce — Drunkenness—Extreme Cruelty.</p> <p>The occasional or temperate use of alcoholic stimulants, or even occasional drunkenness, does not constitute habitual drunkenness; but occasional intoxication, accompanied by cruel conduct and abusive language, may be held to constitute extreme cruelty, and to justify a divorce on that ground.1</p> <p>3. Same — Alimony—Appeal and Error.</p> <p>That defendant sinoe the hearing in the circuit has inherited a portion of his father’s estate, does not warrant the appellate tribunal in modifying the award of alimony in consideration of his changed financial condition; complainant’s remedy is by application to the court below.</p>

Bill by George E. Kollen against Mortimer A. Sooy and another for the recovery of a money decree. From a dismissal of complainant’s bill he appeals.

<p>Appeal from Van Burén; Des Yoignes, J.</p> <p>Bill by John B. Shered against Evelyn Shered for divorce. From a decree for complainant, defendant appeals.</p>

<p>Appeal from Wayne; Donovan, J.</p> <p>Bill by . John Hopkins against Josephine Sanders for the foreclosure of a mortgage. From a decree for complainant, defendant appeals.</p>

<p>Error to Wayne; Rohnert, J.</p> <p>Case by George Saros against the Avenue Theatre Company for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

Bill by George M. D. Clement and Mildred Clement against the Buckley Mercantile Company to set aside a compromise and certain conveyances made in furtherance thereof. From a decree for complainants, defendant appeals.

, presiding. Trover by Thomas G. Sullivan against John Godkin for the wrongful cutting and conversion of certain timber. Judgment for plaintiff. Defendant brings error.

<p>1. Sales — Executed Sale — Contracts—Title.</p> <p>Under the terms of a contract for the sale of a quantity of apples, at a stated price, to be shipped within fifteen days and paid for when loaded, weights and grades to be guaranteed by plaintiff, after defendant had accepted and paid for the greater part of the apples, title passed as to the remainder of the property which plaintiff had packed in barrels and tendered to defendant; so that damage to the fruit by frost thereafter was not plaintiff’s loss, and she was entitled to recover the difference between the price at which she resold and the contract price.</p> <p>2. Same — Inspection.</p> <p>Though inspection of the apples had not been made by defendant, nothing further remained for the seller to do except deliver them, and title passed at the time of executing the contract.</p> <p>3. Same — Appeal and Error.</p> <p>Thus any possible error in the charge of the court to the jury upon the duty of plaintiff to protect the apples, being cured by the verdict for plaintiff, who was, in fact, entitled to a directed verdict, was not prejudicial.</p>

Case by the Grand Rapids & Indiana Railway Company against the L. Starks Company for the negligent burning of a freight car. Judgment for defendant. Plaintiff brings error.

Exceptions before sentence from the recorder’s court of the city of Detroit; Connolly, J. Gordon W. Quider was convicted of taking usury.

Prohibition by the Triangle Land Company against Oramel B. Fuller, auditor general of the State of Michigan, to restrain the issuance of a certificate of error as to certain tax deeds.

<p>1. Railroads — Street Railways — Personal Injuries — Contributory Negligence — Coasting in Highway.</p> <p>Plaintiff was injured while coasting on a public street by colliding with a switch engine of defendant railroad company which, having elevated its main track over the street, had secured permission to maintain a side track at grade for engines, cars, etc., on condition that it keep a flagman at the crossing. Plaintiff knew of the crossing and the use to which defendant put it. No flagman had been installed. Other boys had been accustomed to coast on the hill beneath the viaduct and across the switch track, and defendant had protected them in the past by sending a train hand ahead to give warning of the approach of the locomotive. On the night in question it failed to do so. Plaintiff looked and listened before starting down the hill, but saw no engine or flagman. Held, that he was not guilty of contributory negligence, as matter of law.</p> <p>2. Same — Custom—Evidence.</p> <p>The court correctly admitted evidence of the general practice of the public to use the hill for coasting, as it was brought to defendant’s notice; and the proofs showed that it had taken precautions to protect those so using the hill.</p>

Assumpsit by Gill & Company, a foreign corporation, against the National Gaslight Company for the price of certain globes. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.

Bill by Harry E. Barr against the Packard Motor Car Company to set aside a compromise made with plaintiff of his claim for personal injuries. Prom an order overruling a demurrer to complainant’s bill, defendant appeals.

<p>1. Master and Servant — Assumption of Risk — Negligence.</p> <p>In a personal injury case brought against his employer by a servant who was employed in a paper mill at a washing tank containing revolving paddles, and who was injured by the starting of the machinery while he was necessarily inside the tank in the course of his work, the court properly refused to direct a verdict for defendant on the testimony of defendant’s millwrights, disputed by plaintiff, that they warned him that they were about to repair the machinery and not to enter the tank: the doctrine that ordinary risks are assumed had no application to the aotion, for the reason that the risk was not ordinary.</p> <p>2. Same — Fellow-Servants—Repairing Machinery.</p> <p>Where plaintiff had reported a loose or defective belt to defendant’s millwright who promised to repair it, and sent his assistants to do the work, they were not fellow-servants of plaintiff, but represented the master in performing such work. Ostrander, J., dissenting.</p> <p>3. Same — Contributory Negligence — Choice of More Dangerous Way.</p> <p>It was not error to hold that the question of contributory negligence was for the jury, where plaintiff went into the tank in the performance of his duties, by means of a ladder provided by defendant for that purpose, although he might have done the work less expeditiously by using a pole and hook, and where he had taken the precaution to throw off the belt and tie the lever so the power could not be applied while he was inside.</p>

Case by Henry K. Gustin against the Evening Press Company for libel. An order overruling a demurrer to plaintiff’s declaration is reviewed by defendant on writ of certiorari.

Bill by Gilbert Olsen against Charles B. Williams to quiet title to certain lands. From an order overruling a demurrer to complainant’s bill, defendant appeals.

<p>1. Judgment — Foreign Judgment as Evidence — Indemnity— Guaranty.</p> <p>In an action upon a guaranty that the purchaser of plaintiff’s interest in a partnership would pay all obligations due from the firm, evidence of a judgment obtained in a foreign State against the plaintiff upon a demand against the former partnership was prima faeie proof of the amount of plaintiff’s damages.</p> <p>2. Same — Notice.</p> <p>No notice to the guarantor or indemnitor of pendency of that action was necessary in order to render the judgment admissible.</p> <p>3. Same — Trial—Conduct of Counsel.</p> <p>Defendant’s attorney committed prejudicial error in commenting, during his argument, upon the pleadings and findings in the court of the foreign State where judgment was obtained, as the judgment concluded the parties as to all matters necessarily considered in arriving at the determination.</p> <p>4. Fraud — Indemnity, Contract of.</p> <p>Where neither plaintiff nor the purchaser of his interest in the business made, in plaintiff’s presence, any false statements relating to the amount of debts covered by the guaranty, defendant could not escape liability for breach of the guaranty on the theory that he was misled as to the amount of debts.</p>

Assumpsit by Frank E. Habicht and others, copartners as Habicht, Braun & Company, against Frank Gallagher and others, copartners as E. B. Gallagher & Company, for breach of a contract of sale. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendants on writ of error.

Assumpsit by Arland W. Johnson against John G. O’Neill and another for services performed as defendants’ architect. Judgment for plaintiff. Defendants bring error.

Carl F. Wilson and another presented to the probate court of Saginaw county for probate an instrument claimed to be the last will of Louisa D. Kohn, deceased, showing certain alterations. ■ Louise Graebner presented the instrument as originally drawn, and a subsequent codicil. On appeal to the circuit court a judgment was entered admitting to probate the altered will and holding the codicil revoked. Contestant appeals.

Case by Oasinova Walter against William Walter and Mary Walter for alienation of the affections of plaintiff’s husband. . Judgment for plaintiff. Defendants bring error.

Bill by Charles Brown against Oliver N. King and others for an injunction, accounting, and other relief. From a decree for defendants granting relief claimed in their amended cross-bill, complainant appeals.

Bill by Charles H. Werner against Herman A. Hinz and another for an injunction and other relief. From a decree for defendants, complainant appeals.

Bill by William H. Young and another against Reeves & Company, a foreign corporation, for the cancellation of certain notes and mortgages. From an order overruling a demurrer to complainant’s bill, defendant appeals.

<p>Error to Oakland; Smith, J.</p> <p>Case by Philip Hibbler against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit in justice’s court by Benjamin E. Klock against Morrie Brown for money had and received. Defendant appealed to the circuit court from a judgment rendered against him. Judgment for defendant, upon a directed verdict. Plaintiff brings error.

Bill by Senator R. Beidler against the City Bank of Battle Creek and others to quiet title to certain lands and for the cancellation of several conveyances, and to enforce a trust. From a decree for defendants, complainant appeals.

Case by John Lubbers against the township af Manlius for injuries to property resulting from defective construction of a highway. Judgment for plaintiff. Defendant brings error.

Bill by William H. Mills against the William Drueke Company and the Fred Miller Brewing Company for the redemption of certain property purchased under a land contract. From a decree for complainant, defendants appeal.

Case by Nick Minkkinen against the Quincy Mining Company for personal injuries. An order denying defendant’s motion for a new trial is reviewed by defendant, on writ of error. On motion to dismiss.

Mandamus by Samuel W. Beakes against the board of State canvassers to compel respondents to issue to relator a certificate of nomination as democratic candidate for representative in Congress.

Mandamus by W. Glen Abbott against the board of county canvassers of Montcalm county and others to compel the board to reconvene and modify their determination on recount as to the office of county clerk.

, presiding. Mandamus by Claude C. Ritze against the board of county canvassers of Iron county to compel respondents to canvass the votes according to the returns and not to consider the result of a recount. An order issuing the writ is reviewed by respondents on writ of certiorari.

Mandamus by the board of election commissioners of Wayne county and another against Henry A. Mandell and others, circuit judges of the county of Wayne, to compel respondents to vacate a preliminary injunction restraining relators, the board of election commissioners, from printing the name of Proctor K. Owens on the ballots used in the general election, said injunction having been issued in a suit instituted by the attorney general against relators.

Mandamus by Charles F. Cook against the board of election commissioners of Cheboygan county to require respondents to place relator’s name on the ballot as candidate for probate judge on the national progressive ticket. An order granting the writ is reviewed by respondents on certiorari.

<p>1. Master and Servant — Railroads—Negligence—Statutes.</p> <p>Act No. 104, Pub. Acts 1909, 2 How. Stat. (2d Ed.) § 4110, which abolishes the fellow-servant doctrine as to common carrier railroads, and permits recovery if the negligence of plaintiff was of lesser degree than that of his co-employés, changes the common-law rules relating to contributory negligence as heretofore applied in this State, and permits a recovery if the fault of plaintiff was less than that of defendant’s servants: the provision does not mean that a plaintiff chargeable with contributory negligence can only recover if defendant was guilty of gross negligence. The language of the proviso, section 2, has no reference to the three degrees of negligence as known at common law.</p> <p>2. Same — Assumption op Risk — Contributory Negligence.</p> <p>Under the provisos of section two of the act, the defenses of contributory negligence and assumed risk are not available, if the failure of the defendant to comply with statutory provisions for the safety or protection of employés caused the injury, or if the negligence of plaintiff was less than that of defendant.</p> <p>8. Same — Trial—Argument.</p> <p>In arguing the case to the jury, plaintiff’s counsel did not commit error requiring the reversal of the case, in attempting to argue matters not sustained by the evidence, where the court interposed and corrected the statement, which plaintiff’s attorney promptly withdrew.</p> <p>4. Same — Railroads—Rules.</p> <p>Plaintiff, who was injured while at work in a cinder pit underneath a locomotive, which was started without warning, was not barred from recovering by a rule of defendant that foremen and car repairers or other workmen of the car department must display a flag before commencing to work about or under cars, since he was not employed in such department and was not a foreman or car repairer.</p>

Case by Richard Arends against the Grand Rapids Railway Company for personal injuries. An order sustaining a demurrer to plaintiff’s declaration is reviewed by plaintiff on writ of error.

Case in justice’s court by Clayton E. Deake and another against the United States Express Company for the loss of a bull calf in transit. The cause was appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

Bill by Amelia Erichsen and others against Robert T. Tapert and others to enjoin the breach of certain building restrictions. From a decree granting a part of the relief prayed, both parties appeal. The bill in this case is filed to enjoin a threatened violation of certain building restrictions claimed by complainants to cover the premises involved. The lot in question is No. 49, lying at the southwest corner of Chandler and Oakland avenues in the city of Detroit.

<p>Error to Manistee; Withey, J.</p> <p>Case by Charles A. Wallin against the Arcadia & Betsey River Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Venue — Change—Motions—Appeal and Error.</p> <p>The denial of a motion for a change of venue is only reviewable if the court abused its discretion. Act No. 67, Pub. Acts 1909.</p> <p>2. Criminal Law — Change oe Venue.</p> <p>It was not an abuse of the court’s discretion to deny a change of venue on motion of respondent, who claimed that adverse newspaper comments had aroused local sentiment against him; newspaper reports are ordinarily regarded as too unreliable to influence a fair-minded man, and a juror, although he may have formed- an opinion from reading such reports, is competent if he states that he is without prejudice, and can try the case impartially according to the evidenoe, and if the court is satisfied that he will do so.1</p> <p>3. Same — Time, Lapse of.</p> <p>After the lapse of more fhan a year from the date of the alleged offense the court might take into consideration the tendency of public interest and prejudice to abate, in arriving at a determination of the question of changing the venue.</p> <p>4. Same — Second Trial.</p> <p>He might also take notice of facts coming to his knowledge during the first trial of the same case in which he presided, and was warranted in deferring his final determination until the examination of the jurors as to their qualifications upon the second trial demonstrated that a fair and impartial jury could be and was selected.</p> <p>5. Trial — Opening Statement — Prosecuting Attorney —Misconduct of Prosecutor — Criminal Law.</p> <p>Though the prosecuting attorney fails to prove allegations made in his opening statement to the jury, it is not necessarily an indication of bad faith.</p> <p>6. Same.</p> <p>Where the prosecuting attorney in opening his case to the jury stated that it was expected to show that respondent, charged with grossly immoral and indecent conduct, practiced hypnotism, and the witness who should testify to the crime was under respondent's control, but no proof of the facts stated was offered, the court charging the jury that they should not consider that phase of the case, prejudicial error did not appear.</p> <p>7. Criminal Law — Evidence of Prior Offenses. .</p> <p>Evidence of two prior offenses between the same parties was properly admitted as having a tendency to show the secret criminal relations of the accused and the witness, and to show facts from which the crime naturally arose.</p> <p>8. Same.</p> <p>It does not lie with the accused to object to the admission of competent evidence on the theory that it was of so heinous a nature, and so prejudicial to respondent, that it ought not to be used against him.</p> <p>9. Same — Trial—Curing Error.</p> <p>The exclusion of evidence of a conspiracy against respondent, where the court later on permitted his attorney to develop the matters at length, was not prejudicial error.</p> <p>• 10. Trial — Argument—Conduct of Counsel.</p> <p>Alleged prejudicial remarks made by the prosecuting attorney in arguing the case were not sufficient ground for a new trial when the statements were called out by the argument of respondent’s attorney.</p> <p>11. Criminal Law — Time of Offense — Videlicet.</p> <p>Under an information charging that the offense occurred “heretofore, towit, on the 23d day of November, 1909,” evidence of a crime relied on by the prosecution occurring about a week before the day stated was admissible: proof of respondent’s absence from the county on the 23d of November was not a conclusive alibi.</p> <p>12. Same — Alib^Charge.</p> <p>The charge of the court that if the crime was committed during the month of November, defendant might be found guilty, that if defendant was not at the plaoe alleged when the evidence of the prosecution showed he was there, he could not be held guilty, that an alibi was as legitimate a defense as any other, etc., sufficiently covered the points and was a correct statement of the law.</p> <p>13. Same — Instructions to Jury.</p> <p>The court rightly instructed the jury as to proof of previous misconduct that, even though they believed the accused guilty of such offenses, they must find him not guilty unless they were satisfied beyond a reasonable doubt of his committing the offense charged.</p> <p>14. Same — New Trial — Affidavits of Jurors.</p> <p>Affidavits of jurors cannot be received to impeach their verdict.</p> <p>15. Same.</p> <p>Evidence examined, and held, to support a verdict of guilty.</p>

Mandamus by the city of Detroit to compel respondent, the Detroit United Railway, to pave between certain of its tracks and make other required improvements. An order dismissing the petition is reviewed by relator on writ of certiorari.

Bill by George J. Hilberg and Emory J. Doerr against Charles H. Greer and Elizabeth Greer for specific performance of an option for the sale of land. From an order sustaining a demurrer to complainants’ bill, complainants appeal.

Case-made from Eaton; Smith, J. Information in the nature of quo warranto by Calvin H. Hill and others against Frank P. Town and others to determine the right of respondents to the office of directors of a corporation. A judgment confirming respondents’ title to the office is reviewed by relators on case-made.

Eaton; Smith, J.. Bill by Frank P. Town and others against the Duplex-Power Car Company, for injunctive and other relief. From orders appointing a receiver and enjoining the sale of assets, defendants appeal.

, presiding. Bill by Frank L. Carpenter against Oscar J; Hood, Shubael Hammond, Cora M. Carpenter, John I. Carpenter, and Herbert M. Rogers, executor of the estate of Q. A* Smith, deceased, to restrain an execution levy and offset certain judgments. From a decree dismissing the bill, complainant appeals.

, presiding. Bill by the Jackson City Bank against Robert Campbell, Helen Turner, and others, for the foreclosure of a real estate mortgage. From a decree for complainant, defendant Turner appeals.

Bill by Harry E. Rodgers as administrator of the estate of Flora A. Yates, deceased, against Susan H. Beckel and others for specific performance, accounting, and other relief. From an order overruling a demurrer to the bill of complaint, defendants appeal.

Bill by Grace Rodger Xiplinger against Charles E. Xiplinger and others for divorce and an injunction to restrain defendant from withdrawing funds o_n deposit. From a decree for complainant, denying any alimony and dissolving a preliminary injunction, she appeals.

Assumpsit by Elizabeth Roulo against the Schiller Bund upon a benefit certificate. Judgment for plaintiff upon a directed verdict. Defendant brings error.

Trespass by Myrtle Totten, an infant, by Ryol J. Totten, her next friend, against Bien H. Totten, for assault, battery, and rape. Judgment for plaintiff. Defendant brings error.

Assumpsit by Joseph H. McGough against James Hopkins for an alleged balance due for the purchase price of certain lands. Judgment for plaintiff. Defendant brings error.

Eminent domain proceedings by the Detroit United Railway against the Barnes Paper Company. An order dismissing the petition is reviewed by petitioner on writ of certiorari. Plaintiff in certiorari filed its petition for the purpose of condemning a strip of land 120 feet in width and about 500 feet long belonging to defendant. Objections thereto were filed, brought on to be heard, and after a hearing the petition was dismissed.

Bill by Anna F. Onen against George R. Herkimer, mayor of the city of Dowagiac, and others, for an injunction to restrain the construction of a sewer! From a decree for defendants, complainant appeals.

, presiding. Matilda E. Daglish presented for allowance her final account as trustee under the will of Harriet O. Shailer, deceased. From an order of the probate court settling the accounts of the trustee, after her death, and the appointment in her stead of Albert E. Miller as trustee, the Fidelity & Deposit Company of Maryland appealed to the circuit court. From the order entered, appellant brings error.

Bill by Thomas F. Pinel and another against Charles W. Pinel, Rachel Pinel, and Rachel Campsel, to require defendant Rachel Pinel to pay taxes and interest on a mortgage covering premises in which defendant claimed a life estate. From a decree for complainants, defendant Rachel Pinel appeals. On petition of appellant to restrain proceedings to enforce the decree and on motion of appellees to dismiss.

Assumpsit by Arend Vanderveen against George E. Ellis for money had and received. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.

<p>Appeal from VanBuren; Des Voignes, J.</p> <p>Bill by Myrtle Austin against Merle Austin for divorce. From a decree for complainant, defendant appeals.</p>

Case by John M. Goretski against the Au Sable & Northwestern Railway Company for the negligent killing of plaintiff’s horse. Judgment for plaintiff. Defendant brings error.

Bill by Margaret Albert against Clara Patterson and another in aid of an execution upon a decree in chancery. From an order sustaining a demurrer to complainant’s bill, the complainant appeals.

Bill by George C. Crane against George Read and another to have a deed declared a mortgage. From a decree dismissing the bill, complainant appeals.

Bill by the German Corporation of Negaunee, Michigan, against the Negaunee German Aid Society and others for. the reformation of a deed and to quiet title to certain mineral rights. Defendants filed a cross-bill, praying for cancellation of said deed of conveyance. From a decree granting defendants the relief asked, complainant appeals.

Mandamus by John Lake against Patrick H. O’Brien, Houghton circuit judge, to compel respondent to vacate an order adjudging relator guilty of contempt of court, and to release him from custody.

<p>1. Fraud — Pleading—Falsity. ¡</p> <p>On objection to the introduction of testimony for the alleged reason that the declaration failed to charge fraud and was insufficient, the trial court properly held that the allegations that certain false and fraudulent representations were made, relied on and deceived plaintiff, whereby he paid certain money to defendant, who converted it to his own use, stated a case.</p> <p>2. Evidence — Compromise—Curing Error.</p> <p>The action of the trial court in sustaining an objection to evidence of an offer of compromise made by defendant, and withdrawing from the jury the answer of the witness, protected defendant’s rights.</p> <p>3. New Trial — Motions.</p> <p>It is correct to deny a new trial if alleged newly discovered evidence would not change the result.</p>

Case-made from Calhoun; North, J. Walter S. Powers presented to the board of supervisors of Calhoun county a claim for services rendered as attorney and counsel. It was disallowed and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings case-made.

<p>Error to Cheboygan; Shepherd, J.</p> <p>Assumpsit in justice’s court by David Bowen against Merritt Chandler for the value of an engine and boiler. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.</p>

Bill by Silas Doane against Carrie Allen and another for an injunction to restrain a threatened trespass and other relief. From an order denying defendants’ motion to dissolve a temporary injunction, defendants appeal.

<p>Error to Kent; Perkins, J.</p> <p>Assumpsit by George 0. Snyder and Edna E. Snyder against Lester B. Markham. Judgment for plaintiffs. Defendant brings error.</p>

Bill by Melbourne H. Olmstead against William 0. Meyers and another to foreclose a mortgage. Complainant filed a petition for a deficiency decree, which was dismissed. Petitioner appeals.