Volume 176 — Michigan Reports

<p>Error to Wayne; Mandell, J.</p> <p>Assumpsit by Henry Japes against Claude M. Harmon for a balance due under a building contract. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Mandamus by the public schools of the city of Muskegon against Luther L. Wright, superintendent of public instruction, to compel respondent to change his apportionment of primary school funds for the year 1908.

•James D. Kennedy and Charles J. Kennedy were convicted of making an indecent and unlawful exhibition of representations of parts of the human body.

<p>Error to Lake; Withey, J.</p> <p>Oscar M. Auerbach was convicted of murder in the first degree.</p>

<p>Appeal from Wayne; Mandell, J.</p> <p>Bill by the Union Trust Company against George W. Radford and Laura F. Radford for the foreclosure of a mortgage. From a decree for complainant, defendants appeal.</p>

Case by Blanche W. Bissell and others against Edward Ford and others for damages to an office building. Judgment for defendants. Plaintiffs bring error.

<p>Error to Houghton; Streeter, J.</p> <p>. Assumpsit by Ella Foiles against the Michigan Commercial Insurance Company, on a policy of fire insurance. Judgment, for plaintiff, and defendant brings error.</p>

Mandamus by the Northern Assurance Company of Michigan against the common council of the city of Detroit to compel respondents to strike relator’s assessment from the tax rolls. An order granting the prayer of relator’s petition is reviewed by respondents on writ of certiorari.

Bill by Margaret Longenecker and others against Sarah E. Graham and others to set aside a deed. From a decree for complainants, defendants appeal.

Bill by May Tisman against George F. Tisman for separate maintenance. Defendant was granted a divorce on his cross-bill charging extreme cruelty. From an order denying complainant’s petition to file a bill of review, she appeals.

Bill by George H. Fredrick and another against Martha Willis and others for the enforcement of mechanics’ liens. From a decree for complainants, defendant Willis appeals.

Assumpsit by the Twin City Creamery Company against Charles H. Godfrey and Ephraim L. Brant for breach of a written contract. Judgment for defendants on a directed verdict. Plaintiff brings error.

Bill by Hattie Bristol Van .Syckle against William Thompson and another for the cancellation of a deed and contract of settlement. From a decree for defendants, complainant appeals.

<p>Error to Chippewa; Oren, J.</p> <p>Assumpsit in justice’s court by Samuel Wineberg against George Porter and Harry Gemmel to recover back the purchase price paid for a horse. From a judgment for plaintiff, defendants appealed to the circuit court. Judgment for defendants. Plaintiff brings error.</p>

<p>Error to Ingham; Wiest, J.</p> <p>Ejectment by Jennie B. Walker against Eva May Schultz. Judgment for défendant, and plaintiff brings error.</p>

<p>Error to Kent; McDonald, J.</p> <p>Case by Veva C. Wallace against the Detroit, Grand Haven & Milwaukee Railway Company for the destruction of plaintiffs baggage. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Wayne; Hosmer, J.</p> <p>Case by Jessie Fuller against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Clair; Beach, J. Edmund Shanahan presented for probate the will of Maurrice C. Shanahan, deceased. From an order admitting the instrument to probate, Margaret Merrick and others, contestants, appealed to the circuit court, where the will was sustained. Contestants bring error.

Bill by Edwin S. George against Fred H. Rollins and others to restrain the use of a trade name. From an order overruling, a demurrer, defendants appeal.

<p>Pleading — Evidence—Contributory Negligence — Incompetency.</p> <p>Proof that plaintiff, in a personal injury action, was mentally defective or incompetent, is inadmissible unless the declaration contains averments sufficient to apprise defendant, his employer, of the claimed condition, although the testimony is offered to negative contributory negligence, and not as a basis for damages.</p>

Assumpsit by Edwin H. Cogswell against the city of Escanaba for an installment of interest upon a certificate of indebtedness. Judgment for plaintiff upon a verdict directed by the court. Defendant brings error.

<p>Negligence — Street Railways — Personal Injuries — Contributory Negligence.</p> <p>It was not, as a matter of law, contributory negligence for plaintiff to cross a street ear track on which no car was approaching, where plaintiff looked, at a point 17% feet from the track, and observed a car on the intersecting street that she knew ordinarily did not turn on the street which she was atempting to cross, but proceeded, usually, in the direction it was taking along the intersecting track: and where plaintiff did not look again, being struck by the car as it turned onto the wye.</p>

Bill by Conrad Stroh against John O’Hearn, Joseph Bauman, and other defendants for subrogation. Said Joseph Bauman filed a cross-bill praying for affirmative relief. From a decree for complainant and said Bauman, defendants appeal.

<p>1. Usury — Intent—Written Contract — Mortgages—Taxation.</p> <p>In addition to 7 per cent, interest provided for in a mortgage, it was usury to stipulate that the mortgagor should pay the mortgage tax, whether or not the parties actually intended to carry out the arrangement.</p> <p>2. Same — Equity.</p> <p>Under the statutes of this State, no remedy in equity is provided for the mortgagor to restrain the foreclosure of the security on the ground of usury, or to obtain relief for usurious provisions in the instrument.- 1 Comp. Laws, §§ 4857, 4858 (2 How. Stat. [2d Ed.] §§2870, 2871).</p> <p>3. Same — Equitable Remedies — Pleading.</p> <p>Since statutes forbidding usury are penal in character, they must be strictly construed, and if a complainant is not strictly within the terms of the statute relieving the borrower of interest, he must offer or tender in his pleading in chancery to pay the principal and five per cent, interest thereon.</p> <p>4. Same.</p> <p>Unless some attempt has been made by the mortgagee to enforce payment of the mortgage tax as provided for in the contract, no equitable relief can be awarded in a suit to enjoin foreclosure by advertisement.</p>

<p>1. Brokers — Commissions—Contracts—Options.</p> <p>Where a broker advised the owner of hotel property that he had a prospective buyer, asking about price and terms, and naming the party, and the owner telegraphed giving the price and stating that he had six buyers, later stating by letter his terms and closing with the broker’s offer of $38,000 for the property, upon commission of $1,000, and where the broker arranged with other purchasers to take the hotel property through a deed to and in the name of the one purchaser mentioned, who was to execute a quit' claim deed to the parties in interest, the broker was entitled to recover his commission, although the sale could not be completed because tbe property became involved in litigation so that the owner could not convey a clear title.1</p> <p>2. Same.</p> <p>The broker’s duty is performed when he. has found a purchaser that is ready, willing, and able to purchase upon the terms specified, and his right to commissions is not defeated if the title proves to be defective or unmerchantable.2</p>

Bill by William E. McKenzie and Tod Kincaid against Rose Call and Emma Connelly for cancellation of certain deeds and contracts and for an injunction. Bill dismissed as to defendant Connelly. Defendant claimed affirmative relief. From a decree for complainants, defendant appeals.

Assumpsit by Robert L. Campbell, trustee in bankruptcy of the estate of the Kalamazoo Sample Furniture Company, against John H. Raven to enforce payment of a subscription to stock of the bankrupt. Judgment for defendant. Plaintiff brings error.

<p>Error to Berrien; Bridgman, J.</p> <p>Replevin by James Allison against Ira Teeters for a bay stallion. Judgment for plaintiff. Defendant brings error.</p>

Bill by Allen Miller, executor of the estate of Henry W. Miller, deceased, against Garrett Casey for an accounting. From a decree for defendant, complainant appeals.

<p>1. Competency — Deeds—Capacity of Grantor.</p> <p>Evidence tending to . prove that decedent executed deeds of all his real property to his son, excluding his daughter from any share in his estate, at a time when he had become enfeebled by illness, that he had failed rapidly after the death of his wife and prior to the making of the deeds, that his memory was impaired but he was capable of transacting business understandingly and was active mentally, and well preserved both mentally and physically at the age of 85, held, insufficient to invalidate the transfers.1</p> <p>2. Deeds — Burden of Proof — Evidence—Incompetency.</p> <p>The complainant, seeking to set aside voluntary deeds of a decedent, has the burden of proving a charge of incompetency by a preponderating evidence, so that evidence which does not prevail over defendant’s testimony, or which' is so evenly balanced as to leave the issue in doubt, will not sustain the claim of incapacity.</p> <p>3. Gifts — Testamentary Deeds — Parent and Child.</p> <p>Mere inequality or unfairness between a grantor’s children or heirs- will not invalidate deeds of his property executed in contemplation of death, if he acted understandingly.</p> <p>4. Deeds.</p> <p>Held, that the weight of the evidence sustained the capacity of defendant’s grantor to make a disposition of his estate by deed.</p>

Bill by School District No. 2, Sylvan Township, Washtenaw County, against Henry Musbach and another to quiet title to real property. From a decree for complainant, defendant appeals.

Minnie Ham Paul presented for probate the will of Helen E. Sossoman, and on appeal to the circuit court a judgment was entered admitting the instrument to probate. Contestant Emma Clements brings error.

Case by Frances Sailsky as administratrix of the estate of Anthony Sailsky, deceased, against the Detroit United Railway for the unlawful killing of decedent. Judgment for plaintiff. Defendant brings error.

Assumpsit by Fred Knapp and another against Edgar R. Hubbard for goods sold and delivered. Judgment for plaintiffs. Defendant brings error.

, presiding. Bill by Neil J. Berston and another against the city of Flint for an injunction. From a decree for complainants, defendant appeals.

Bill by Nettie Lanning against A. E. Stiles and Albert A. Abbott for a decree of interpleader. From a decree for complainant, defendant Stiles appeals.

Case by Myrtle Spencer against Peter Johnson and others for unlawful sales of intoxicating liquor to plaintiffs husband. Judgment for plaintiff. Defendants bring error.

Quo warranto by Oscar Wheeler against Arthur Coleman to determine title to the office of township treasurer. Judgment for relator. Respondent brings error. In this case relator and respondent were rival candidates for the office of treasurer for the township of Antwerp. The election was held April 1, 1912.

Mandamus by George Hartingh and others, as trustees of the village of Pinconning, against Chester L. Collins, one of the circuit judges for the county of Bay, to compel respondent to vacate a preliminary injunction issued in a suit in which the attorney general is complainant and relators are defendants.

<p>1. Forgery — Fraud—Malicious Prosecution.</p> <p>In the offenses of forgery or uttering forged instruments, a fraudulent intent is the gist of the crime.</p> <p>2. Malicious Prosecution — Forgery—Probable Cause.</p> <p>Testimony that plaintiff, in an action for malicious prosecution, took orders for sewing machines as agent for defendant, to be paid for in cash, and executed leases which he signed or caused to be signed in the name of the purchasers, and forwarded to defendant, plaintiff claiming that he followed a custom of the agency in so doing, for the purpose of keeping a record of the sale, and gained no profit by the transaction; presented a question of fact whether or i^ot defendant had probable cause to arrest plaintiff, for forgery.</p> <p>3. Same — Justification — Prosecuting Attorney — Advice- of Counsel as Protection.</p> <p>In order that the advice of the prosecuting attorney may constitute a defense to an action of malicious prosecution, it must be made to appear that full and fair statement of all the material facts was made to him by defendant: failure to state any material matters may raise an issue of fact, sufficiently justifying the court in leaving the issue to the jury.1</p> <p>4. Trial — Conduct of Court — Argument.</p> <p>It is the duty of the trial judge to be present and hear the argument of counsel to the jury, and although his absence may not amount to reversible error, he should be present and afford an opportunity to counsel to make objections and obtain rulings during the course of the argument.</p> <p>5. Malicious Prosecution — Probable Cause — Evidence.</p> <p>Defendant was entitled to have given, as a part of the charge, a requested instruction that neither discontinuance of a prosecution nor discharge of the plaintiff on his examination established want of probable cause or plaintiff’s innocence; and a charge that such discontinuance and discharge prima facie established want of probable cause was prejudicial to defendant’s rights.</p>

<p>Process — Affidavits—Capias ad Respondendum — Knowledge of Affiant — Motion to Quash.</p> <p>On motion to quash a writ of capias ad respondendum, issued on plaintiffs’ affidavit that they were induced to take defendant's note for a balance due, in an exchange of property, by false' representations of defendant, who stated that he owned several houses- and lots, and that a surety on the note owned certain property; that affiants had ascertained that defendant did not own the houses as represented, and the surety did not possess the prop- - erty stated, the writ should have been quashed, for the reason that affiants could not have personal knowledge as to the ownership of the property, and the affidavit was insufficient.</p>

Mandamus by the Palmer-Stevenson Construction Company against Charles A. Withey, Mason circuit judge, to require respondent to vacate an order striking a cause from the calendar and to proceed with the trial.

Bill by Fred G.. Austin as receiver of Cameron Currie & Company, a copartnership, against Charles Hayden and others, copartners as Hayen, Stone & Company, for accounting and other equitable relief. Numerous intervening claimants presented claims for adjudication. Upon an appeal previously taken, a restatement of account was ordered by this court. From the final order entered, defendants Hayden, Stone & Company appeal.

<p>Error to Saginaw; Gage, J.</p> <p>Joseph. Danenberg was convicted of larceny from a boat in the daytime.</p>

Mandamus by John E. Kinnane, James A. Kennedy, and Ora E. Reaves, members of the industrial accident board, to compel Oramel B. Fuller, auditor general, to allow and pay expenses of said board out of the general fund of the State, and to cease charging such expenses to the appropriation of $25,000 made by the legislature of 1912.

<p>1. Evidence — Officer of Corporation — Cross-Examination — Books of Account.</p> <p>In assumpsit for a balance of salary due, it was proper cross-examination to inquire of the president of defendant corporation concerning the correctness of defendant’s books, from which the witness had taken a statement used by him on the stand: plaintiff was entitled to a full cross-examination as to material matters. No error was committed in refusing to strike from the evidence the statement so used by the witness and his testimony relative to the balance shown by the books of defendant.</p> <p>2. Same — Books—Prejudicial Error.</p> <p>No prejudicial error was committed by introducing in evidence plaintiff’s book showing amounts received by him, admitted by defendant’s books to be correct, with the exception that a larger amount was credited by plaintiff to defendant than its own books disclosed; any possible error in the reception of this evidence favored rather than prejudiced defendant.</p> <p>3. Same — New Trial.</p> <p>Held, that the evidence was sufficient to sustain the verdict in plaintiff’s favor.</p>

Mandamus by Czeslaw Wojnowski against the common council of the city of Detroit to require respondents to approve an application for a retail liquor license. The circuit court denied the petition: relator brings certiorari.

Case by William Patow against the village of Oak-wood and the board of water commissioners of the city of Detroit for personal injuries. Plaintiff discontinued as to the last named defendant. Judgment for defendant village of Oakwood on a directed verdict. Plaintiff brings error.

<p>1. Divorce — Dismissal or Bill — Decree.</p> <p>Notwithstanding the filing of an answer in the nature of a cross-bill, in a suit for divorce, the complainant is entitled to dismiss the proceedings without prejudice at any time before interlocutory or final decree, unless some legal interest of defendant or the State precludes.</p> <p>2. Same — Interlocutory Orders and Decrees.</p> <p>Neither an order restraining defendant husband from incumbering or selling his property pending suit for divorce, nor an order for the payment of temporary alimony, so affects the merits of th'e controversy as to deprive complainant of her right to dismiss.</p> <p>3. Same.</p> <p>Complainant was entitled to dismiss her bill for divorce after the hearing and before a final decree had been entered, her counsel having asked for and obtained further time to secure additional testimony, and the time having expired without complainant taking any steps to introduce the additional proof.</p>

Assumpsit by the Detroit River Transit Company against Byron S. Aldrich for gravel sold and delivered to defendant. Judgment for plaintiff. Defendant brings error.

<p>Error to Houghton; O’Brien, J.</p> <p>Trover by Matt Hautala against Charles Dover for the conversion of an electric automatic piano. Judgment for plaintiff. Defendant brings error.</p>

Bill by the Excelsior Wrapper Company against Philip Yund for an accounting. From ah order overruling a demurrer to the bill of complaint, defendant appeals.

<p>Appeal and Error — Divorce—Decree—Time.</p> <p>On its own motion this court will dismiss an appeal in divorce proceedings taken nearly two years after the entry of a decree, notwithstanding the subsequent filing of a petition for rehearing, denied by the circuit court. Jurisdiction of the Supreme Court in chancery appeals is limited to the maximum period fixed by statute and court rules.</p>

<p>Criminal Law — Disorderly House — House of III Fame.</p> <p>Notwithstanding a want of evidence that specific acts of lewdness had been committed in the house' conducted by respondent, between the dates charged in the information, which alleged that respondent kept a house of ill fame, a verdict finding her guilty was sustained by evidence of the bad character of the place, of the persons who resorted thereto, and respondent’s admissions on the stand that she had conducted a house of prostitution at the place in question, and about two weeks before the time stated in the information had been arrested as a common prostitute and had pleaded guilty, and on her testimony that, during the period charged in the pleading, men had visited the house at a late hour and had gone to an upper room with one of the female inmates, remaining until about four o’clock in the morning.</p>

<p>Exceptions before sentence from Wayne; Hosmer, J.</p> <p>James D. Kennedy and Charles J. Kennedy were convicted of a violation of Act No. 62, Pub. Acts 1911 (2 How. Stat. [2d Ed.] § 5299).</p>

Clair; Law, J. Case by Theodore Ennest against the Pere Marquette Railroad Company for personal injuries. Defendant filed a plea in abatement, which was overruled. Defendant brings certiorari.

Case by Sherman T. Barnhart against the Michigan Central Railroad Company and the Pere Marquette Railroad Company for personal injuries. The court overruled defendant’s plea in abatement, and defendant last named brings certiorari.

Claim by Frank J. Rohrig against the estate of Louis J. Dubois. The commissioners on claims disallowed a part of the claim. Claimant appealed to the circuit court. From a judgment for claimant for part of amount claimed, both parties bring error.

Richardson as administrator of the estate of Edith I. Barhite, deceased, against the Detroit & Mackinac Railway Company for the negligent killing of decedent. Judgment for plaintiff. Defendant brings error.

Case by John Watkins against Eugene L. Burdick for money obtained by misrepresentation. Judgment for defendant upon a directed verdict. Plaintiff brings error.

<p>1. Master and Servant — Instructions—Obvious Danger.</p> <p>Every normal, mature man must employ his senses in self-protection whenever there may be reasonable cause to apprehend danger, and must do all that an ordinarily prudent man ought to do under the circumstances, and while it is the master’s duty to instruct a servant as to risks which may not be discovered in the exercise of ordinary caution, obvious risks or dangers are assumed by the servant.1</p> <p>2. Same — Contributory Negiigence — Obvious Risks.</p> <p>Where plaintiff was familiar with woodworking machinery as a result of long experience, and knew that adjustments of the machine he was using were required to be different for hard than for soft wood, he could not recover for injuries sustained in attempting to plane a piece of hard wood, without examining the adjustments of the planer, which, were not in condition for the work he was attempting to perform, causing the piece to fly hack and force plaintiff’s hand on the knives.</p>

<p>1. Covenants — Deeds—Building Restrictions — Violation.</p> <p>Defendant obtained tbe title of lot J subject to a restric- ' tion that the premises should be used only for residence purposes, and no residence should be erected thereon of less value than $2,500. He commenced the construction of what he claimed was a barn, but caused machinery to _ be moved in and commenced to use the structure for business and manufacturing purposes. Defendant had no horse or automobile; but contended that he expected in the immediate future to make certain alterations so as to change the alleged barn into a four-family flat. The decree of the circuit court required defendant to remove the building in 90 days. Held, that the decree was too broad and should be modified so as to permit defendant to complete the building for residence purposes, if he should elect so to do, to be worth when completed not less than ?2,500. Moore and Kuhn, JJ., dissenting.</p> <p>2. Deeds — Restrictive Covenants — Interpretation.</p> <p>If a building on property subject to building restrictions is of the required value, and is used for the purposes mentioned, it is not in violation of the restriction because it may be unsightly or offensive to the taste, or because its erection may tend to render adjacent property less valuable.</p>

<p>Error to Cass; Des Voignes, J.</p> <p>Assumpsit by William F. McKnight against Elick Lowitz for services rendered. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Appeal and Error — Divorce—Pleading.</p> <p>On appeal from a decree of divorce granted for extreme cruelty, this court will not consider an objection to the sufficiency of the averments of the bill that was not raised in the lower court.</p> <p>2. Divorce — Extreme Cruelty.</p> <p>Held, that the charge of extreme cruelty was established by the evidence.</p>

Bill by Charles T. Moore and others against John Curry and others for an injunction and other relief. From a decree for complainants, defendants appeal.

<p>1. Prescription — Private Way — Alley—Ejectment.</p> <p>Where a private way is improved by the owner and left open for the convenience of others, their use in common with the owners and those for whose special benefit it was opened is, as a rule, to be regarded as permissive only and under an implied license. As to a defendant who claims that his testatrix had exercised adverse user of a strip belonging to an alley that consisted of land taken from both adjoining owners, the use made of that portion taken from property which she did not own must be treated as permissive, not adverse.</p> <p>2. Same — Adverse Usee — Exclusive Possession Necessary.</p> <p>Defendant could not obtain title to that part of a vacated alley which belonged to adjoining property owners, under evidence of joint user by decedent with the other proprietors, permissive in its inception and not under color of title, since her alleged occupation under a claim of right which they disputed did not become exclusive, and the possession and user by both parties was of the same character.</p> <p>3. Same.</p> <p>Neither occupation in common with the public nor possession concurrent with that of the true owner is ever exclusive.</p>

<p>Error to Kent; Cogger, J., presiding.</p> <p>Case by Max Priebisch against Bernard Ottenwess for fraud. Judgment for plaintiff. Defendant brings error.</p>

Bill by Catherine Roth and others against Elizabeth Rubert to enjoin appeals of defendant from the determination of commissioners on claims in the estate of David Robison, deceased. From a decree granting partial relief, both parties appeal.

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

<p>1. Pleading — Variance—Appeal and Error.</p> <p>In the absence of a motion for a directed verdict or any objection to the evidence, on the ground that there was a variance between the declaration and proofs, the point will not be considered on writ of error.</p> <p>2. Same — Inspection—Trial—Instructions to Jury — Mines and Mining.</p> <p>Where defendant, in an action for personal injuries, sustained in its mine by the falling of rock, claimed that the premises had been adequately inspected two weeks before the fall, but the testimony showed that blasting was done every day in the mine and it had a tendency to loosen the rock, the court properly refused to charge, as requested by defendant’s attorneys, that if the place was inspected at the time and in the manner customary in mines of the kind defendant conducted, and such inspection failed to disclose the loose condition of the rock, plaintiff could not recover.</p> <p>3. Appeal and Error — Weight oe Evidence — Verdict.</p> <p>A verdict will not be set aside on error if the contention of the prevailing party was supported by affirmative testimony which, if the jury believed it, would sustain the finding.</p> <p>4. Damages — Excessive Verdict.</p> <p>Five thousand dollars damages for loss of two fingers and injuries partially disabling the others, held, too large, and reduced to three thousand dollars.</p>

Mandamus by Emil B. Gansser against Harry Vanderveen, president, and Charles F. Sargeant, clerk, of the village of East Grand Rapids, to compel respondents to sign and deliver to relator an order on the village treasurer. An order granting the writ is reviewed by respondents on writ of certiorari.

Bill by Martin L. Howe against Alfred Benedict and others for specific performance of a contract of Rhoda A. Howe, deceased. From a decree for complainant, defendants appeal.

Clair; Tappan, J. Assumpsit by Morris M. Silverstone against the London Assurance Corporation. Actions against the Northern Assurance Company, Limited, of London, and against the Sovereign Fire Assurance Company of Canada were consolidated by stipulation and tried with said cause. Judgment for plaintiff. Defendants bring error.

Petition by Henry J. Eikhoff against the charter commission of the city of Detroit for writ of prohibition to restrain respondent from proceeding to oust petitioner from his office as a member thereof.

Mandamus by Margaret Snyder against George W. Bridgman, Berrien circuit judge, to compel respondent to vacate an order granting a continuance in a cause in which petitioner was plaintiff and one William F. Stine defendant.

Bill by Charles C. Bloomfield against W. Frank Maloney, Clara McKain, and Edward Kurtz for a decree of interpleader. From a decree awarding the fund to defendants Kurtz and Maloney, said McKain appeals.

Bill by G. F. Sanborn Company against Theodore Richter and another for redemption from certain tax purchases. From a decree for complainant, defendants appeal. Complainant is the owner through mesne conveyances of tax titles for the years 1891-1898, inclusive, covering the S. W. section 19, township 49 north, of range 41 west, in the county of Ontonagon.

Bill by Samuel R. Kingston and others against Charles A. Busch and another for an injunction. From a decree for complainants, defendants appeal.

<p>Error to Wayne; Murphy, J.</p> <p>Assumpsit by Thaddeus Galvin against the Detroit Steering Wheel & Windshield Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by the Island Mill Lumber Company against the city of Alpena for the recovery of taxes paid under protest. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Appeal from Chippewa; Shepherd, J.</p> <p>Bill by John Robson against Margaret Townley and others for partition. From a decree for defendants, complainant appeals.</p>

On motion to quash a writ of certiorari issued at the petition of William D. C. Germaine against Wood-bridge N. Ferris, governor of the State of Michigan, to review proceedings wherein petitioner was removed from the office of mayor of Traverse City.

Case by Carrie E. Hoben in justice’s court against the Citizens’ Telephone Company for injuries done to certain trees. Plaintiff obtained a judgment and defendant brought certiorari to the circuit court. Judgment for plaintiff. Defendant brings error.

Bill by Henry Ebling against Clara Ebling to set aside and cancel a deed for failure of consideration and breach of conditions contained in the instrument. From a decree for complainant, but granting a lien on the land in defendant’s favor, defendant appeals.

Bill by Nellie F. Van Sceiver against Robert King to foreclose a mortgage. From a decree for complainant, awarding less than the relief claimed, she appeals.

<p>Garnishment — Jurisdiction—Waiver of Defects.</p> <p>Having appeared in garnishment proceedings and made disclosure without raising any objection to the jurisdiction of the court, after a trial in which the garnishee participated and after - the entry of judgment and the lapse of a year and a half subsequent to trial, the garnishee defendant must be held to have waived any objections to the sufficiency of process and of service. Heritage v. Armstrong, 101 Mich. 85 (59 N. W. 439), overruled in part.</p>

Bill by Jacob I. White and another against the Herrick Piano Company and others for cancellation of certain conveyances. From a decree for complainants, said Herrick Piano Company appeals.

<p>Error to Isabella; Dodds, J.</p> <p>Case by Michael Keenan against the city of Mt. Pleasant for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Clair; Tappan, J. Assumpsit by Larry E. O’Neill, administrator of the estate of Julia Breen, deceased, against the Ancient Order of Gleaners upon a benefit certificate. Judgment for plaintiff. Defendant brings error.

Bill by the State Security & Realty Company against John R. Shaffer and another for specific performance of a contract to exchange real property. From a decree for defendants, complainant appeals.

, presiding. Case by George W. King against the Grand Rapids Railway Company for personal injuries. Judgment for defendant, on a verdict directed by the court. Plaintiff brings error.

Bill by David W. Conant and others against George P. Stone and others for the construction of the will of Milton L. Rice, deceased. From a decree for complainants, defendants appeal.

<p>Error to Saginaw; Gage, J.</p> <p>Case by Willard Pequignot, by his next friend, against Edward Germain for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Master And Servant — Scaffold—Materials Furnished — Duty to Supply Suitable Lumber.</p> <p>In the construction of a scaffold for the erection of a building, it is the master’s duty to provide suitable material: evidence that plaintiff was hurt by the breaking of a weak board containing a knot, that other men had refused to work on the scaffold because they considered it unsafe, that there was not sufficient good lumber at hand when the scaffold was built to construct a safe one (although defendant produced testimony to the contrary), warranted the court in submitting to the jury the question whether suitable material had been supplied.</p>

Bill by Samuel Isberg against Louis H. Miller and Julius Goldman for reformation of a written contract and other relief. From a decree for complainant, defendants appeal.

<p>1. Criminal Law — Evidence—Population—Census—Estimate.</p> <p>Testimony that the population of a township had increased since the last census, and that in the judgment of the witnesses, being officials and others, the population was more than 1,000 at the time the township board passed a resolution authorizing respondent to keep his saloon open until 11 p. m., was properly excluded in the absence of an actual enumeration of the inhabitants.</p> <p>2. Same — Trial—Admitted Facts — Trial by Jury — Directing Verdict — Instructions.</p> <p>It was not error for the trial court to advise the jury, after they had been out some time, that they ought not to have any difficulty in reaching a verdict of guilty, but that they must pass on the question, permitting the jury to retire and bring in a verdict against respondent who had admitted the fact of keeping his saloon open after 9 p. m.</p> <p>3. Same — Good Faith.</p> <p>The fact that a retail liquor dealer kept his saloon open after 9 p. m., relying in good faith on a resolution of the township board permitting him to remain open until 11 p. m., was no defense to a prosecution in which it was not proved that the population of the township, shown to have been 721 at the last census, had thereafter increased above 1,000. Act No. 291, Pub. Acts 1909, § 17 (2 How. Stat. [2d Ed.] § 5071).</p>

Case by Joseph Snarski against the Montreal Mining Company for personal injuries. Judgment for defendant upon a directed verdict. Plaintiff brings erorr.