Volume 178 — Michigan Reports

Clair; Tappan, J. Bill by Nettie Chamberlain against Alma Husel for the construction of the will of Herbert G. Chamberlain, deceased. From a decree for complainant, defendant appeals.

Bill by John McEwen and Lillie C. McEwen against Andrew J. Keary and others to set aside a deed and for other relief. From a decree for complainants, defendant Keary appeals.

, presiding. Summary proceedings by Edward M. Lieblien against Hans G. Hansen and. another who appealed to the circuit court from an order of restitution entered by the commissioner. Judgment for complainant. Defendants bring error.

Assumpsit in justice’s court by Leo Lepan against the MacKinnon Boiler & Machine Company for breach of a contract of apprenticeship. Judgment for plaintiff on appeal to circuit court. Defendant brings error.

Contempt proceedings against Marion W. Briggs and others for disobedience of an injunction in a suit brought by William L. Jones against the Michigan railroad commission. The Cass County Home Telephone Company was allowed to intervene as a party defendant. Marion W. Briggs and Charles E. Sweet bring certiorari from an order adjudging them guilty of contempt.

<p>1. Common Counts — Work and Labor — Quantum Meruit — Contracts — Express and Implied Obligations.</p> <p>Upon evidence showing the existence of a definite contract that fixed plaintiff’s compensation for selling speedometers as agent for the manufacturer, he could not recover on the quantum, meruit; the damages must be limited by the terms of the express agreement.</p> <p>2. Contracts — Services — Commission — Principal and Agent— Mutuality.</p> <p>While damages cannot be recovered for termination of a contract of an agency for the sale of speedometers on commission, which fixed no definite term or specific number to be sold, the contract was not void for want of mutuality, notwithstanding that plaintiff might' terminate the arrangement at any time: so far as it was performed the agreement was valid and binding and authorized the recovery of compensation as provided.</p> <p>3. Same — Employment—Agency—Commission— Agreement.</p> <p>Under evidence which, considered in the light most favorable to plaintiff, would entitle him to recover, to the effect that defendant agreed to pay him commissions on reorders secured during a succeeding year by defendant, he could recover compensation for reorders which defendant got after it terminated the contract.</p> <p>4. Same — Estoppel — Principal and Agent — Corporations —</p> <p>Authority.</p> <p>Where plaintiff negotiated with defendant’s representative for an agency to sell speedometers on commission, and, having entered into an agreement, undertook to carry it out to the knowledge of defendant’s officers, and defendant corporation enjoyed the avails and benefits of his labor, it was estopped to deny that its representative had authority to execute the alleged contract.</p> <p>5. Same — Reorders.</p> <p>A reorder included contracts for an instrument like the speedometer handled by plaintiff under his agency contract, although the later kind sold at an advance of two ■ dollars and was somewhat altered.</p>

<p>Appeal from Wayne; Hally, J.</p> <p>Bill by J. Henry Smith against the Library Tea Company for an injunction. From a decree for com- . plainant, defendant appeals.</p>

Bill by Resom M. Painter and another against the Lebanon Land Company and others for sequestration of assets. From an order overruling defendants’ plea in abatement defendants appeal.

Bill by John Curtis and others against the Charlevoix Golf Association for an injunction and other relief. From a decree for complainants, defendant appeals.

<p>Error to Montcalm; Davis, J.</p> <p>Assumpsit by Myrtle E. Bowen against the Prudential Insurance Company of America on a policy of life insurance. Judgment for plaintiff, and defendant brings error.</p>

Case by John C. Weadock against William C. Swart and others for the loss of property stolen in a hotel belonging to defendants. Judgment for defendants. Plaintiff brings error.

Assumpsit by Cobbs & Mitchell, a corporation, against the Boyne City Tanning Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.

Assumpsit by Harry J. Parker and others, copartners as Parker, Schunk & Fry, against Oliver H. Davis and Ida Davis for brokers’ commissions. Judgment for defendants. Plaintiffs bring error.

<p>1. Husband and Wife — Estates by Entirety — Deeds — Quitclaim by Wife — Estoppel.</p> <p>By executing, to secure a loan, her sole quitclaim deed of property held by the grantor and her husband as an estate by the entirety, the wife conveyed no interest in the premises: nor did title inure to the benefit of the grantee by reason of the husband’s death and the title thereafter acquired by his wife.1</p> <p>2. Same — Equity—Lien—Purchase Money.</p> <p>No equitable lien on the property was created for the sum paid by the grantee of the joint property, in the absence of fraud or deception on the part of the grantor.</p> <p>3. Same — Maxims of Equity — Quieting Title.</p> <p>But it should be made conditional to equitable relief, in a suit to quiet title begun by the widow after her husband’s decease, that she repay the consideration received for the deed.</p>

Mandamus by Grant S. McDowell and Bertha B. McDowell against Joseph Barton, Mecosta circuit judge, to require respondent to set aside an order denying relators the right to open a default decree.

<p>Appeal from Wayne; Hosmer, J.</p> <p>Bill by Ida E. Wellman against 'Samuel Wellman for divorce. Defendant filed a cross-bill. From a decree for defendant, complainant appeals.</p>

<p>Certiorari to the recorder’s court of the city of Detroit; Connolly, J.</p> <p>Benjamin Meisner was convicted of violating an ordinance.</p>

<p>1. Criminal-Law — Statutes — Water — Unlawful Taking — Indictment and Information — Municipal Corporations.</p> <p>An information charging that the respondent did “unlawfully hinder and interfere with the proper action and just registration of a certain water meter,” etc., stating the charge in the language of the statute (3 Comp. Laws, §§ 11603-11605), sufficiently advised the respondent of the exact nature of the offense and imported wilful and fraudulent interference.</p> <p>2. Same — Amendment of Information — Appeal and Error.</p> <p>But “an amendment at the trial adding to the information the words “wilfully and fraudulently,” did not prejudice the rights of the respondent and charged no different offense.</p> <p>3. Same — Repeal of Statute — Construction.</p> <p>Under the saving clause of Act No. 277, Pub. Acts 1911 (5 How. Stat. [2d Ed.] § 14626 et seq.), which repealed 3 Comp. Laws, §§ 11603-11605, but created a similar offense, providing also that all proceedings pending and all rights and liabilities existing, acquired or incurred should be saved, an offense committed before the law was repealed might be prosecuted; “rights” included the right of the public to institute a prosecution and “liabilities” covered the respondent’s liability to be prosecuted.</p>

Exceptions before sentence from Clinton; Searl, J. Elmer E. Emmons was convicted of violating the law relative to the sale of intoxicating liquors in a county that had adopted prohibition.

<p>Error to Genesee; Wisner, J.</p> <p>James Courtney was convicted of breaking and entering a store occupied as a bank.</p>

<p>Forgery — Bills and Notes — Uttering Forged Instruments — Passing Check Without Funds — Names.</p> <p>Evidence that the respondent, who was charged with uttering a forged check (3 Comp. Laws, §§ 11659, 11660, 5 How. Stat. [2d Ed.] §§ 14695, 14696), indorsed and delivered to the witness for the prosecution a check for ?10 signed by respondent who was also the payee, that there were no funds in the drawee hank in the name of respondent, that the witness had known him since boyhood and his name was not that which he signed on the instrument, hut respondent went by the name so used and the witness supposed respondent was signing his own name to the check, held, not to support the charge, and that it did not tend to prove the instrument was false or forged.</p>

<p>1. Criminal Law — Names of Witnesses for Prosecution — Information, Indorsing Names on — Appeal and Error.</p> <p>Under the provisions of 3 Comp. Laws, § 11934 (5 How. Stat. [2d Ed.] §15105), requiring the prosecuting attorney to indorse upon the information the names of witnesses known to him at the time of filing, it was not erroneous to permit the prosecuting officer to add the name of a witness at the trial, upon his statement that he had. just learned of the testimony that morning, although respondent’s counsel objected on the ground that there was no reason why the name could not have been indorsed before. In the absence of a specific objection that the showing made by the prosecution was insufficient, the contention that the showing was not made under oath will not be considered, on writ of error, no claim having been made that the defense was surprised, or needed more time, or that the accused suffered prejudice from the testimony of the witness.</p> <p>2. Seduction — Criminal Law — Evidence — Character—Reputation.</p> <p>The right to show good character or reputation does not authorize one charged with seduction to show by a witness with whom he had associated that his conduct with her had been good.</p> <p>3. Same — Trial—Argument.</p> <p>Held, that the argument of the prosecuting attorney relating to incompetent evidence that the court struck from the record was not so prejudicial as to require reversal of the conviction.</p>

Case by William Flynn against George Boglarsky and others for libel. Judgment for plaintiff for nominal damages. Plaintiff brings error.

Assumpsit in justice’s court by Franklin W. Sassaman against William R. Wells for medical services. Judgment for plaintiff on appeal to the circuit. Defendant brings error.

<p>Error to Baraga; O’Brien, J.</p> <p>Case by Stella Mayo against the village of Baraga for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Case by Daniel Heikkala against August Isaacson and the Michigan Bonding & Surety Company for injuries sustained at the hands of an intoxicated person. Judgment for plaintiff. Defendant brings error.

Case by George W. Colwell against the Alpena Power Company, Limited, for flooding plaintiff’s lands. Judgment for plaintiff. Defendant brings error. Plaintiff brings his suit against defendant to recover damages, which he claims have accrued to him by reason of defendant’s unlawful act in flooding his (plaintiff’s) lands, which lie on or near the shores of Hubbard Lake. At the outlet of said lake defendant maintains a dam.

<p>Error to Clinton; Davis, J., presiding.</p> <p>Assumpsit by the Union Telephone Company against Eric Ingersoll. Judgment for plaintiff, and defendant brings error.</p>

Mandamus by the Massachusetts Mutual Life Insurance Company and Charles W. Pickell against the board of trustees of the Michigan asylum for the insane at Kalamazoo. Allie B. Willey and others filed an intervening petition.

Bill by Angus J. McDonald against William Fleming and others for the dissolution and winding up of an alleged partnership. From a decree for defendants, complainant appeals.

<p>Appeal from Tuscola; Beach, J.</p> <p>Bill by Francis W. Loomis and Josephine L. Reed against Charles W. Loomis for the cancellation of a deed. From a decree for defendant, complainants appeal.</p>

Bill by Otto Misch and others against Fred A. Lehman and others for an injunction to enforce a restrictive covenant in certain conveyances. From a decree for complainants, defendants appeal.

<p>1. Mandamus — Irrelevant Matter in Answer or Return — Motions — Practice—Pleading.</p> <p>Allegations of irrelevant matter, included in an answer in mandamus proceedings, will not be struck out on motion, but tbe proper practice is to bring tbe objectionable allegations to the attention of tbe court at tbe bearing or in tbe briefs of counsel.</p> <p>2. Same — Framing Issues — Answer of Respondent.</p> <p>On mandamus proceedings by tbe Michigan railroad commission against a railway corporation, wbicb declined to obey tbe order of sucb commission requiring the company to continue to carry products of a corporation engaged in lumbering over a spur track wbicb tbe railway company bad commenced to tear up, it was not necessary to frame issues as to pleadings and evidence involved or included in a chancery cause that respondent bad instituted to test tbe correctness of tbe order made upon pleadings and proofs by relator; and tbe merits of tbe controversy pending before tbe court of equity were not in issue, but merely tbe question whether sucb order should remain in force until tbe determination of the equity proceedings.</p> <p>3. Railroads — Michigan Railroad Commission — Carriers — Freight — Logs and Logging — Discriminatory Acts.</p> <p>Findings of the Michigan railroad commission as to rates or acts of a carrier railroad which are charged to amount to discrimination, prima facie are correct and stand until modified or set aside by tbe courts; if attacked, tbe complaining party has tbe burden of showing by clear and satisfactory evidence that tbe order is unlawful or unreasonable..</p> <p>4. Same — Regulation.</p> <p>In equity proceedings to test tbe validity of an order of tbe Michigan railroad commission whereby tbe complainant was required to continue freight service over a spur track that it was purposed to tear up, where defendant had offered before the. commission and later offered in mandamus before this court to furnish a bond indemnifying the railroad company for all cost and expenses that it might incur in relaying track already removed, the bond also securing the company for interest thereon and payment of all rates that might be fixed by the railroad company and approved by such commission, a writ of mandamus is allowed to enforce the order of the railroad commission pending a final adjudication as to the legality of its findings and judgment.</p> <p>Ostrander and Stone, JJ., dissenting as to tne extent of relief to be granted.</p>

Bill by the Detroit & Mackinac Railway Company against the Michigan railroad commission to review the action of defendant in certain cases; in which the Onaway Shingle & Tie Company and others intervened as complainants; the Fletcher Paper Company and others as defendants. On motion to amend the final decree in Detroit & Mackinac Railway Co. v. Michigan Railroad Commission, 171 Mich. 335 (137 N. W. 329).

Case-made from Jackson; Parkinson, J. Assumpsit by the Pontiac Savings Bank against the Reinforced Concrete Pipe Company and others. Judgment for plaintiff on a directed verdict. Defendant brings case-made.

Helen Jendrus presented her claim to the industrial accident board for compensation for the accidental death of her husband while he was employed by the Detroit Steel Products Company. From the allowance of the claim, defendants bring certiorari.

Margaret McQuillan presented her claim against the estate of Nicholas McCann, deceased. On appeal to the circuit coui;t, a verdict was directed for the defendant. Claimant brings error.

<p>Error to Branch; Knowlen, J.</p> <p>Assumpsit by James R. Patterson against the Stand» ard Accident Insurance Company. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Attachment by Fred Peterson against Lawrence G. Swenningston. Defendant and Almon B. Lee, an intervening petitioner, bring error from an order denying their several motions to quash the writ and vacate a sale under the writ.

Assumpsit in justice’s court by George .Cookes against Lazeros Lymperis. From a judgment for plaintiff, defendant _ appealed to the circuit court, where judgment was rendered for plaintiff. Defendant brings error.

<p>Certiorari to Ingham; Collingwood, J.</p> <p>Harry Langell was adjudged guilty of contempt of court.</p>

Garnishment in justice’s court by Joseph J. Kahn against Joshua Minthorn, principal defendant, and Rogers Bros., garnishee defendant. John Sloan intervened as party claimant. From a judgment for the claimant, plaintiff appealed to the circuit court. Judgment for plaintiff and said intervener brings error.

Assumpsit by Samuel E. Blackwood against the Lansing Chamber of Commerce for breach of a special contract. Judgment for defendant upon a directed verdict. Plaintiff brings error.

<p>1. Contracts — Breach of Promise — Illegal Consideration.</p> <p>On the trial of an action for breach of promise of marriage, which defendant claimed was void, if the facts were as the plaintiff claimed, because her evidence showed an immoral consideration, the court did not err to the prejudice of defendant in charging the jury that if the promise rested solely on her submitting to illicit relations, the promise was void, leaving the disputed issue whether the promise was made prior to the acts shown, to the determination of the jury.</p> <p>2. Same — Breach of Promise of Marriage — Seduction.</p> <p>Although the trial court correctly held that plaintiff could not recover on a count for seduction, being the second count of her declaration, because she had not been virtuous theretofore, the jury were rightly permitted to consider the fact of illicit relations in a verdict based on plaintiff's first count, for breach of a promise of marriage.</p> <p>3. Compromise and Settlement — Effect—Damages.</p> <p>And where the court committed error in his charge by allowing the jury to include in the damages matters that preceded an admitted settlement between the parties, a reduction of the damages from $3,500 to- $1,500 did not cure the erroneous instruction, in a breach of promise case.</p>

<p>Appeal from Baraga; O’Brien, J.</p> <p>Bill by the Teal Lake Iron Mining Company against Millard D. Olds. From a decree for complainant, defendant appeals.</p>

<p>1. Master and Servant — Industrial Accident Commission — Personal Injuries — Course of Employment.</p> <p>Under the terms of Act No. 10, Special Session 1912, providing for an Industrial accident board and authorizing compensation for injuries to any servant “arising out of and in the course of his employment,” the provisions included a decedent who was called from the roof of a building where he was working to partake of a lunch served by the employer, and who, in descending by means of a rope that extended over the edge of the roof and within 12 or 13 feet of the ground, instead of using a ladder which was provided and was safely attached to the roof, fell and was killed; his widow’s right of recovery was properly sustained by the industrial accident board.</p> <p>2, Same.</p> <p>Nor was his act intentional and wilful misconduct so as to defeat the claim.</p> <p>McAlvay, C. J., dissenting.</p>

Case by the Union Ice Company against the Detroit & Mackinac Railway Company for negligently setting fire to plaintiff’s icehouse. Judgment for plaintiff. Defendant brings error. On March 24, 1910, plaintiff’s icehouse, located a short distance north of Bay City, was destroyed by fire. The house, which was full of ice, stood between the right of way of defendant company and the lake shore. Its westerly end was distant from defendant’s main line track about 85 or 90 feet.

<p>1. Criminal Law — Statutes—Bribery.</p> <p>In a prosecution of the sales agent of a foreign corporation for bribing the warden of the State prison at Jackson to accept second-hand, used and worn machinery in the place of new machinery ordered for the twine and cordage plant, respondent should be sentenced under 3 Comp. Laws, § 11385 (5 How. Stat. [2d Ed.] § 14894), which is the later statute, and provides that any person interested directly or indirectly in a contract with a State or county institution who shall corruptly give, offer or promise to any officer of such institution any bribe, gratuity, etc., with intent to improperly influence his official action under such contract, shall be punished by a fine not exceeding $500. The prior statute, 3 Comp.” Laws, § 11311 (5 How. Stat. [2d Ed.] §14724), is broader in its scope, and offenses within the provisions of the subsequently enacted statute are governed by the later enactment.</p> <p>2. Same — Statutory Construction — Repeal.</p> <p>A statute covering the same ground as a former act supersedes it for all further cases without the necessity of repealing words, and, in so far as the provisions are inconsistent, repeals it.</p> <p>3. Same — Evidence—Bribery—Letters.</p> <p>Testimony that the warden received from the son of respondent a package which contained $1,500 and a note addressed to the warden, signed by respondent, saying, “The book I am sending- you is one of great value, keep it,” was admissible, together with the money, and with certain letters relating to the purchase of machinery and used to compare the writing with that of the note, which the prosecution alleged had been written by respondent.</p> <p>4. Same — Evidence—Hearsay—Witnesses.</p> <p>The rule that one who has been charged with a crime should produce evidence within his control, or his failure to do so may be considered against him by the jury, does not apply to a respondent who is privileged not to produce the proof: and if a statement is made by one whom he is not called upon to notice, his silence will not be taken as an admission, nor will it if he is restrained by fear or by doubt of his rights.</p> <p>5. Same — Rights of Accused.</p> <p>It was error to permit the introduction of stenographic minutes of the testimony of a witness taken at the hearing, in a foreign State, of extradition proceedings: the statements of such witness could not be treated as admissions of the accused.</p>

Eminent domain proceedings by the township of Custer against William Dawson and others. A judgment in circuit court on appeal from the highway-commissioner and township board is reviewed by petitioner on writ of certiorari.

<p>1. Equity — Jurisdiction—Insurance—Fraud.</p> <p>In a suit brought to restrain any action at law upon an insurance policy which the insurer had never delivered, and which it charged in good faith was procured by fraudulent representations, also averring nondelivery, and it appeared from the testimony that the policy had never been delivered to the insured while he was in good health, as provided by the rules of the society, the court should have retained jurisdiction on1 the latter ground, although the alleged fraud was not sustained by the evidence.1</p> <p>2. Same — Fraternal Beneficiary Associations — Delivery.</p> <p>Where it was provided by the rules of a mutual benefit assurance society that no policy should be in effect until it should be delivered to the applicant while in good health, and a similar clause was contained in his application, which also contained the statement that he had been acquainted with the rules, also where he became afHicted with paresis and was an inmate of an asylum before the policy was sent to the local officials of the association for delivery, and no undue delay or neglect on the part of complainant took place, the policy never went into effect, and although the applicant had been initiated into the society, being apparently in good health, a decree should have been entered for complainant association on its bill to enjoin an action on the certificate.</p>

Clair; Law, J. Case by Leo Curtis, by his next friend, against the Grand Trunk Railway Company of Canada for personal injuries. Judgment for plaintiff. Defendant brings error.

Assumpsit by George S. Lockwood and others, doing business as Lockwood & Barnard, against Fred Y. Wynkoop and others on a promissory note. Judgment for. plaintiffs. Defendants bring error.

<p>Appeal from Muskegon; Sullivan, j.</p> <p>Bill by Louis P. Haight against Frank M. Smith, George R. Ross and Henry L. Palmer to set aside a deed. From a decree for defendants, complainant appeals.</p>

Bill by the Jewel Theater Company against John T. Winship, State fire marshal, and others, for an injunction. From an order overruling a demurrer to the bill of- complaint, defendants appeal.

Case by Edward P. Kirby against Charles E. Soule and others for libel. From an order dismissing the cause as to several defendants, joined under a notice pursuant to Act No. 233, Pub. Acts 1911, defendant Soule brings error.

<p>Error to Charlevoix; Mayne, J.</p> <p>Assumpsit by Herman C. Meyer against William Shapton and Earl J. Shapton for breach of a contract of sale. Judgment for plaintiff. Defendants bring error.</p>

<p>1. Automobiles — Highways and Streets — Municipal Corporations — Contributory Negligence — Personal Injuries.</p> <p>In an action for personal injuries to plaintiff by being hit in crossing a city street by a taxicab, the burden rests on him to establish that he was free from contributory negligence.</p> <p>2. Same — Use of Public Streets.</p> <p>Where plaintiff and others crossed a city street and his companions waited for a taxicab to pass, but plaintiff passed in front of the car and was struck by it, and plaintiff’s testimony did not show that the driver was on the wrong side of the street or that he was proceeding at excessive speed, but that the plaintiff looked twice and failed to perceive the taxicab, or to hear any warning signal although other witnesses testified 1 that the horn was sounded, he was negligent as matter of law for failing to exercise his faculties to protect himself.1</p> <p>Kuhn, Ostrander, and Bird, JJ., dissenting.</p>

<p>Error to Huron: Beach, J.</p> <p>Robert MacGregor was convicted of murder.</p>

Case by LaFayette F. Stuch against Frank Town for damages to plaintiff’s automobile. Judgment for defendant upon a directed verdict. Plaintiff brings error.

<p>Error to Bay; Collins, J.</p> <p>Case by Harvey N. Peters against the Detroit & Mackinac Railway Company and the Pere Marquette Railroad Company for personal injuries. Judgment for plaintiff. Defendants bring error.</p>

Assumpsit by Warren Geddes against the Ann Arbor Railroad Employees’ Relief Association on a policy of health and accident insurance. Judgment for plaintiff. Defendant brings error. Plaintiff sues defendant as assignee of a claim of the estate of one Ralph L. Westerland, against defendant. It appears that on October 31, 1908, Westerland was an employee of the Ann Arbor Railroad. On that day he secured a policy of insurance in the defendant association.

The claim of B. Frank McNall against the estate of Uriah H. Mitchell, deceased, was allowed in part by the probate court. Edward Sweeney, executor, appealed to the circuit court. Judgment for claimant. Defendant brings error.

<p>1. Trial — Inconsistent Positions — Bill of Particulars.</p> <p>Where plaintiff filed a bill of particulars showing a balance due for labor and materials in plastering houses belonging to defendant, and crediting defendant with payments on account, and where the defendant in his testimony claimed that he had made one payment of $500 on the account presented, and plaintiff admitted receiving that amount but claimed it paid a previously existing ' indebtedness for labor and services, testimony tending to establish his contention was not improperly received, nor was it so inconsistent with the opening statement of counsel for plaintiff, who admitted that plaintiff had received $200 to pay other indebtedness and to apply on the account, as that the court should have excluded the testimony; where it also appeared that the defendant had given no notice of the defense with his plea and plaintiff was first advised of the claim by amendment of the plea at the trial and by evidence in support of the claimed payment.</p> <p>2. Evidence — Books of Account — Admissibility—Refreshing Recollection of Witness.</p> <p>It was not error to admit in evidence plaintiff’s account book, kept In his own handwriting, showing the number of yards of plastering for which plaintiff claimed a judgment, the book being received only for the purpose of refreshing the recollection of the witness.</p> <p>3. Payment — Trial—Instructions.</p> <p>Where plaintiff brought suit to recover for certain plastering, and the defendant had paid $500 on the account, claiming, however, that he had paid the $500 before a given day, while the plaintiff claimed that the payment took place at a later time, and should be credited upon a previously existing debt, the court did not err in charging the jury that if they should find that the claim of plaintiff had been paid except a small balance and $500 was paid afterwards by defendant, plaintiff was overpaid, and on the other hand, if there was no payment on the houses included in plaintiff's bill of particulars, the plaintiff would be entitled to recover; and the jury was not likely to be misled by instructions that if the previous indebtedness due to plaintiff was paid up before he began the work for which he sued, and $500 was afterwards paid, he could not recover.</p>

<p>Error to Ottawa; Cross, J.</p> <p>William Blom was convicted of selling intoxicating liquors illegally.</p>

Mandamus by Orlando F. Barnes and other members of the board of State tax commissioners, and John Thompson and Henry Belitz to require the board of supervisors of Midland county to comply with an order of said commission.

Bill by Grant Fellows, attorney general, on the relation of George H. Barbour, Fred T. Moran, and Charles A. Ducharme, against Richard Lindsay and others, board of election commissioners of the city of Detroit, and Oscar B. Marx, mayor, for an injunction. From a decree dismissing complainants’ bill, they appeal.

Bill by James Meek against Eugene E. Carpenter and another, director and treasurer of school district No. 5 of the townships of Plain well and Algoma in the county of Kent, to restrain defendants from employing a teacher and continuing school. From a decree for defendants, complainant appeals.

<p>1. Libel and Slander — Evidence—Malice.</p> <p>Upon testimony tending to prove that defendant, who had discharged plaintiff from her employ as a house servant, told a tenant, who was going to occupy the same house after defendant’s departure, that plaintiff was not clean about her house work, that she drank, and her work would not be satisfactory, and afterwards, learning that plaintiff had been employed, wrote giving additional reasons why the plaintiff should not be retained, and offering to disclose further facts, the questions of good faith, malice, and privilege were for the jury.</p> <p>2. Same — Privileged Communications — Master and Servant.</p> <p>One who rents a house for the season, to a person who proposes to retain a part of defendant’s servants, is entitled, in good faith, to advise the tenant as to their qualifications, habits, and morals.</p>

Assumpsit by John McKinley against Fred L. Small and others on promissory notes of defendants. Judgment for plaintiff, and defendants bring error.

Bill by Gertrude B. Hartz and others against the Kales Realty Company for an injunction. From a decree for complainants, denying a part of the relief desired, both parties appeal.

<p>1. Amendment — Libel and Slander — Declaration.</p> <p>On the trial of an action for libel, for the publication of an article charging defendant, a sheriff, with drunkenness, dereliction of duty and making an arrest improperly, the court might properly allow plaintiff to amend his declaration by striking out certain of the charges, and basing his action on the remainder, notwithstanding that the defense was prepared to justify as to all the charges; and it was not erroneous to permit the case to proceed .after amending the declaration accordingly and after plaintiff’s counsel had read the entire statement or libel as published to the jury.</p> <p>2. Libel and Slander — Drunkenness—Words Slanderous Per Se.</p> <p>It was libelous per se to charge in a printed article that a county sheriff was drunk while he was performing official duties; if the statement was true the sheriff might be subject to arrest and would be liable to experience public contempt or ridicule.</p> <p>3. Same — Retraction—Notice—Damages.</p> <p>Although plaintiff’s amended declaration counted on certain parts of the libelous publication only, a notice to retract the entire article was properly received in evidence over the objection of the defendant, as the demand for retraction was not invalidated by including portions of the article that plaintiff did not rely upon.</p> <p>4. Witnesses — Trial — Drunkenness—Evidence—Cross-Examination.</p> <p>On the trial of a libel suit, the court committed error in refusing to require the plaintiff, a sheriff, to answer the interrogation of defendant’s attorney whether plaintiff had not frequented a certain saloon and drank there at unlawful times, where the libel had charged plaintiff with drunkenness and dereliction of duty. The defense was entitled to discredit plaintiff by showing his character and antecedents.</p>

Assumpsit in justice’s court by Frederick C. Miller against Edgar A- Maher, Lant K. Salsbury and Eleanor C. Reeves on a bond for costs. Plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

Case by Emma Dailey as administratrix of the estate of Albert Dailey, deceased, against John R. Shaffer for malpractice. Judgment for plaintiff, and defendant brings error.

Bill by Emma J. Scott against Fred A. Roethlisberger, as executor, and others, for the construction of the will of Jonathan Stafford, deceased. From a decree for defendants, complainant appeals.

<p>1. Master and Servant — Warning and Instructing Servant— Knowledge — Notice—Evidence.</p> <p>Evidence that defendant had knowledge that the treadle of its press had caught underneath the lower part of a truck standing near the machine, on occasions previous to plaintiff’s injury, causing the press to repeat, presented a question for the jury on the trial of a personal injury action, whether the defendant should have warned plaintiff, an inexperienced minor servant, of the danger.</p> <p>2. Same — Assumed Risk — Contributory Negligence.</p> <p>Under conflicting proofs, the questions of the obvious nature of the risk and the sufficiency of instructions given to the plaintiff, were for the jury.</p> <p>3. Same — Similar Accidents — Evidence.</p> <p>Testimony that similar occurrences had taken place in the factory of defendant on other machines, was competent to establish notice to the defendant of the danger from placing wheel trucks too near the machines: the exclusion of such testimony was reversible error.</p>

<p>Error to Leelanau; Mayne, J.</p> <p>Assumpsit by Wolfe Galinski against Richard Thomas for breach of contract. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Husband and Wife — Auenation of Affections — Evidence.</p> <p>Upon the trial of an action for the alienation of the affections of plaintiff’s husband, the admission of the defendant, his mother, claimed to have been made to plaintiff, that she had sent the husband away because she did not want him to associate with the wife, that she did not consider her son legally married to plaintiff, supported by defendant’s testimony on the stand that she opposed the marriage and considered the plaintiff unfit for her family, raised an issue of fact for the jury, and the court properly denied a motion to direct a verdict for the defendant.</p> <p>2. Same — Damages.</p> <p>Three thousand dollars for loss of support to the plaintiff and her infarJ- was not unreasonable or excessive damages in a suit for alienation of the affections of her husband.</p>

Petition by Thomas Pinel and Edgar O. Pinel against Rachel Pinel, Rachel Campsell and Charles W. Pinel to enforce the final decree in a suit between the same parties to enjoin waste by defendants. From a decree for complainants, defendant Rachel Pinel appeals.

Bill by Hattie N. B. Dusbiber against Florence A. Melville and others for the construction of a will. From a decree for defendant Melville, complainant appeals.

' Mandamus by Edwin D. Philbrick against William T. Dust, commissioner of parks and boulevards of the city of Detroit, to compel respondent to reinstate the relator as city forester. An order granting the writ is reviewed by respondent on certiorari.

, presiding. George Hart and others presented their petition to the circuit court for the county of Manistee appealing from an order of the State fire marshal in and by which petitioners were required to demolish certain buildings. From an order annulling or reversing the finding and determination of the State fire marshal, he brings certiorari.

Assumpsit by the Continental & Commercial National Bank against John G. Emery, Jr., George A. Hume, and others, to enforce the statutory liability of the directors of the American Electric Fuse Company. From an order overruling a demurrer to the declaration, defendant Hume brings certiorari.

Case by Louis Radie, by next friend, against Thomas Jackson & Co., Limited, a copartnership association, for personal injuries. Judgment for plaintiff, and defendant brings error.

Bill by Alexander Gordon and others against James E. Sherman, Myron J. Sherwood, the Northwestern Cooperage & Lumber Company, and others to set aside the appointment of an assignee for the benefit of creditors of J. S. Edwards and cancel sales made by him. From an order granting the motion of the defendant Sherwood to strike from the files a cross- . bill of defendant Northwestern Cooperage & Lumber Company, the latter appeals.

<p>1. Judgment — Foreign Judgments — Process—Service on Agent.</p> <p>In an action on a foreign judgment rendered on a policy-issued by a voluntary association that had transferred its insurance business to the defendant, evidence that the defendant had no agents in the sister State, that it had never applied for license to transact business there, and that the person served with process in the original cause was not an agent of defendant, and that it was not successor to the voluntary association and had never assumed the obligations thereof, sustained a judgment for defendant on the ground that the foreign court never acquired jurisdiction.</p> <p>2. Same — Corporations—Foreign Courts.</p> <p>Whenever it is made to appear, on inspection of the record of a court of general jurisdiction, that the defendant in a judgment was, at the time of alleged service, without the jurisdiction of the court, and never entered a voluntary appearance, the burden of showing jurisdiction • by virtue of valid service is cast on tbe party that invokes tbe benefit or protection of tbe judgment.</p> <p>8. Constitutional Law — Full Faith and Credit — Judgments.</p> <p>Tbe constitutional requirement tbat full faitb and credit shall be given in each State to tbe public acts, records, and judicial proceedings of other States does not prevent an inquiry into the jurisdiction of the court which rendered the judgment: even record recitals are not conclusive; oral testimony is competent to dispute the existence of such recited facts.</p> <p>4. Judgment — Appearance—Special Appearance.</p> <p>Appearing to object to the jurisdiction of the court is not a submission to the jurisdiction or a general appearance.</p>

<p>Error to Houghton; Flannigan, J., presiding.</p> <p>Case by Charles Oiva against the Calumet & Hecla Mining Company for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

, presiding. Case by Erick Kaaro against the Ahmeek Mining Company for personal injuries. Judgment for defendant, and plaintiff brings error.

Assumpsit by Ernest L. Wellman against the O’Connor-Martin Company for nondelivery of a quantity of beans purchased by plaintiff. Judgment for defendant on its amended notice of set-off. Plaintiff brings error.

Case by Lillian S. Mehegan as administratrix of the estate of James E. Mehegan, deceased, against the Boyne City, Gaylord & Alpena Railroad Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.