Volume 180 — Michigan Reports

<p>Error to Wayne; Mandell, J.</p> <p>Case by Joseph Mero against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit in justice’s court by the Money weight Scale Company against Joseph David and Deeb Hattem on a promissory note. From a judgment for defendants, plaintiff appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendants bring error.

<p>Boundaries — Adverse Possession — Fences.</p> <p>In an injunction suit involving the boundary lines of complainant’s real property, evidence examined, and held, to support a decree for complainant and against defendants’ claim of adverse possession.</p>

Trover by Mary R. Hogue against Benjamin F. Wells for the conversion of funds belonging to plaintiff. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>1. Mortgages — -Discharge—Construction.</p> <p>In the case of -a mortgage for $1,500, which contained the proviso that when the indebtedness of the mortgagors should be reduced to $3,500 the mortgage should be deemed satisfied, the lien was not affected before such reduction, as security for the $1,500 for which it purported to be a lien.</p> <p>2. Same — Payment.</p> <p>Where defendants had never made any claim that the mortgage had been satisfied and should be discharged, and the evidence showed only that the total indebtedness had been reduced to about $3,500 and the mortgage had been recognized as in force by a written agreement between the parties, the circuit court was justified in holding that it was not satisfied.</p> <p>3. Same — Admissions.</p> <p>And an admission of counsel for the complainant in his opening statement that the amount of loans and discounts upon which the defendants were liable had fallen in 1908 below $3,500, not including overdrafts, could not be treated as ’ an admission that the entire indebtedness had been reduced below the amount stated.</p>

<p>Error to Grand Traverse; Mayne, J.</p> <p>Case by Adelbert Hilgbrandt against the Oval Wood Dish Company for personal injuries. Judgment for plaintiff, and defendant brings error.</p>

<p>Principal and Agent — Fraud—Remase.</p> <p>Accepting as true plaintiff’s evidence and giving it the greatest probative value, it appeared that- his eye was injured in the employ of defendant because of a defective condition of its drill, that the medical adviser and legal counsel of its accident insurance company issuing a policy of indemnity insurance against accidents, by false representations as to the condition of plaintiff’s eye, procured a release and settlement of his claim for $110 and medical expenses, that, finding his eye was blind and the other eye affected, plaintiff tendered bach the amount received and sued for negligent injuries. Held, that by adopting the release, pleading it as a defense and having acted on it in other particulars, defendant ratified the fraudulent acts of the insurer’s physician and lawyer so as to present an issue of fact whether the release was void for fraud.</p>

<p>Assault — Civil Action — Provocation—Charge.</p> <p>Although plaintiff provoked an assault in which he was injured by defendant, the court properly instructed the jury, in an action for the injuries caused by defendant, that the punishment inflicted was unwarrantably severe, submitting to them the question of damages only, upon testimony that the defendant entered plaintiff’s yard in a threatening manner, and, when plaintiff struck him, knocked plaintiff down and severely bruised and cut him.</p>

Bill by Fred Jewell against Josie Kelley and Michael Kelley in aid of execution and for relief against certain voluntary conveyances. From a decree for complainant, defendant appeals.

<p>Error to Muskegon; Sullivan, J.</p> <p>Ejectment by Blanche C. Outhwaite against Charles L. Gunn. Judgment for defendant. Plaintiff brings error.</p>

Case by Grace E. Andrews, as administratrix of the estate of Nicholas J. Andrews, deceased, against the Tamarack Mining Company for the unlawful killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

<p>Appeal from Wayne; Codd, J.</p> <p>Partition by Alex. S. Tolsma and others against Charles S. Tolsma and another. From a decree of partition, defendants appeal.</p>

Assumpsit by the township of Forest against the American Bonding Company of Baltimore and Harry L. Sias on a surety bond. From an order overruling a demurrer to plaintiff’s declaration, defendant bonding company brings certiorari.

Mandamus by Serena McLaulin against Henry A. Mandell, one of the circuit judges of Wayne county, to compel respondent to enter an order setting aside an order vacating the revival of a suit brought by relator against the decedent in his lifetime.

<p>Appeal from Wayne; Hosmer, J.</p> <p>Bill by Emlita Cadieux against Henry W. Cadieux for divorce. From a decree for defendant, complainant appeals.</p>

<p>1. Trial — Witnesses—Absence of Party.</p> <p>The action of the trial judge, in charging the jury that defendant’s absence from the State during a personal injury ease was of no consequence, cured any prejudice that may have resulted from questions referring thereto asked by plaintiff’s attorney.</p> <p>2. Same — Leading Questions — Appeal and Error.</p> <p>Where defendant’s counsel took several objections to interrogatories of the opposing attorney, which were not ruled upon by the court, any intention to propound improper questions being disclaimed and counsel offering to frame new questions if the ones asked were objectionable, no prejudice warranting a reversal was made to appear.</p> <p>3. Landlord and Tenant — Contributory Negligence — Defect in</p> <p>Premises — Promise to Repair.</p> <p>A tenant, who relied on the statement of defendant’s agent that the floor of the kitchen was safe, was not guilty of contributory negligence, as matter of law, in making use of it, although she had called his attention to its weakness, and he had promised ,to make the repair, assuring her at the same time that the floor was not dangerously weak.1</p>

<p>Error to Wayne; Van Zile, J.</p> <p>Case by Lucy M. Beattie against the J. L. Hudson Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Bill by Martha Lecus and others against John Turns, Jr., and Jennie Turns for cancellation of a deed of John S. Turns, deceased. From a decree for defendants, complainants appeal.

Assumpsit by Thomas F. B. Sotham against Esther Macomber, executrix, and Charles M. Miller, executor, of the estate of Allen Macomber, deceased, and others, for commissions and expenses as a broker. Judgment for plaintiff for less than the claimed amount and he brings error.

<p>Error to Allegan; Cross, J.</p> <p>Assumpsit by Carlotta Stevens and others against Charles Jackson for money due, etc. Judgment for plaintiffs. Defendant brings error.</p>

<p>Error to Bay; Collins, J.</p> <p>Assumpsit by Theodore Hapke against James Davidson for services performed. Judgment for plaintiff. Defendant brings error.</p>

Bill by Charles L. Churchill against George Howe and Ella Howe for the enforcement of an equitable lien on real property. From a decree for complainant, defendants appeal.

<p>Error to Houghton; O’Brien, J.</p> <p>Case by Helmer Conradsen against the Osceola Consolidated Mining Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Certiorari to the industrial accident board by the Sligh Furniture Company to review an order awarding compensation to Lida Rayner for the accidental death of her husband, Adelbert Rayner.</p>

Bill by the city of Adrian against the Whitney Central National Bank and Anna M. Weiss for an order of interpleader. From a decree for defendant bank, the other defendant appeals.

Case by Frank S. Veriden against Alexander I. McLeod and others for conspiracy to deprive plaintiff of a public office. Judgment for defendants, on a verdict directed by the court. Plaintiff brings error.

Bill by Catherine Van Haaren against Teresa Tierney for a lien upon lands of John Coryeon, decedent. From an order sustaining a demurrer to complainant’s bill, she appeals.

<p>Error to Jackson; Parkinson, J.</p> <p>Assumpsit by Dudley A. Tyng & Company, a foreign corporation, against Warren T. Converse for breach, of contract of sale: Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Wayne; Hally, J.</p> <p>Case by Adam Dombrowski against the Roe-Stephens Manufacturing Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Assumpsit by Thomas W. Corby against the city of Detroit and village of Grosse Pointe Park for recovery of taxes paid under protest. Judgment for defendants, and plaintiff brings error.

<p>1. Assignments — Liens—Bailments—Mechanics’ Liens eoe. Repairs.</p> <p>The lien of an automobile repair man for repairs and a tire furnished to the owner of an automobile is assignable and enforceable in favor of the assignee who obtains possession of the machine. 3 Comp. Laws, §10054 (5 How. Stat. [2d Ed.] § 12704).1</p> <p>2. Same — Freight Charges — Payment, Application oe.</p> <p>While an item for freight paid by the garage owner was not assignable as a part of the account, it could be treated as paid by the proprietor of the automobile out of $75 which, had been advanced by the owner on account, and which more than covered the freight.</p> <p>3. Same.</p> <p>Although defendant may not have had a lien for an extra tire furnished for the automobile, he was entitled to a common-law lien on the tire for its value.</p>

Kalamazoo; Knappen, J. Bill by Arthur W. Rickman against Alfred G. Rick-man and others for the voluntary dissolution and winding up of George Rickman Sons’ Company, a co-partnership. From a decree for claimant Thomas M. Robinson, the Michigan Trust Company, receiver, appeals.

Trespass on the case in justice’s court by Orville Huddleston against Charles Amos & Company, a corporation, for personal injuries. From an order denying defendant’s petition for leave to appeal, it brings error.

Clair; Law, J. Bill by Alexander Moore, as executor of the estate of Alice O’Leary, deceased, against James A. O’Leary and others for the construction of a will. From a decree for complainant, defendants appeal.

, presiding. Case by John Toth against the Osceola Consolidated Mining Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Electricity — Public Service Corporation — Power and Light —Michigan Railroad Commission.</p> <p>Where an electric light and power company was engaged in the production of both light and power, but at different rates to consumers, and one of its patrons, who obtained current for power in an industrial establishment, by the use of transformers furnished by the complainant, employed the current to produce light without paying the higher rate adopted and published by the company for lighting current, an injunction was properly allowed to restrain defendant from so using the current, since his action operated as a discrimination against the other consumers of electricity for lighting purposes.</p> <p>2. Equity — Injunction.</p> <p>Before raising the question of reasonableness of rates charged by an electric power and light corporation, in a suit in equity involving an alleged discrimination brought about by defendant’s purchasing power and transforming the current into a lighting current, the point should be presented to the Michigan railroad commission which is empowered by Act No. 106, Pub. Acts 1909 (2 How. Stat. [2d Ed.] § 2932 et seq.), to pass on the question of rates.</p>

Case by the Fremont Canning Company against the Pere Marquette Railroad Company for damages to freight, delay in shipments and in providing cars, etc. Judgment for plaintiff. Defendant brings error.

Assumpsit in justice’s court by Theodore F. Millspaugh against Frederick E. Schultz and others for the breach of a bond given in an injunction suit. Judgment for plaintiff. Defendants bring error.

Exceptions before sentence, from the superior court of Grand Rapids; Stuart, J. Harry Segal was convicted of obtaining money by false pretenses.

Mandamus by Mike Hirdes against Orien S. Cross, circuit judge of Ottawa county, to compel respondent to vacate an order denying relator’s motion to dismiss a writ of capias in an action brought against him by Leonard Vis.

Information in the nature of quo warranto by Grant Fellows, attorney general, on the relation of Harry J. Dingeman, against Arthur J. Lacy, judge of the court of domestic relations for the county of Wayne, to try respondent’s title to said office. Respondent demurred to the information. Demurrer overruled and judgment of ouster entered.

Submitted Bill by Barton L. Peck and another against the Detroit United Railway and city of Detroit for an injunction to restrain the construction of a line of street railway proposed to be built under a municipal franchise. From an order sustaining defendants’ demurrer complainants appeal.

Mandamus by the State board of agriculture against Oramel B. Fuller, auditor general, to compel respondent to draw certain warrants on the State treasurer.

<p>1. Attorney General — Fee—Contingent Compensation.</p> <p>Where plaintiffs made with an injured party an oral agreement to take his case as attorneys and prosecute the claim for one-third of the proceeds if the client should pay expenses, and, if not, the attorney should have 50 per cent, of the amount to he secured, and where plaintiffs proceeded with the suit and the client paid none of the costs and defendant settled with the client direct after having notice of the contingent contract, there was evidence to sustain a verdict for plaintiffs for half the amount obtained by the compromise.</p> <p>2. Champerty and Maintenance — Contracts—Validity.</p> <p>Although it was champertous at common law to agree to divide the subject matter of litigation between client and attorney, and for the latter to advance the expense of suit, the former rule has been abolished in Michigan by statute. 3 Comp. Laws, §§ 10054, 11254 (5 How. Stat. [2d Ed.] §§ 12704, 14432).</p> <p>3. Attorney and Client — Notice—Compromise.</p> <p>Evidence that plaintiffs, in a suit to recover their share of proceeds secured by a client in compromising a personal injury claim, had notified the defendant railroad and all its attorneys that they had the case on a contingent basis, presented a question of fact for the jury on the issue of notice.</p> <p>4. Same.</p> <p>Held, also, that a verdict for plaintiffs was not contrary to the weight of the evidence.</p>

<p>1. Equity — Practice—Taxation—Writ of Assistance.</p> <p>Under Act No. 211, Pub. Acts 1905 (1 How. Stat. [2d Ed.] §2021), making the deed of the State land commissioner prima, facie evidence of title, a petition for writ of assistance to obtain possession of tax homestead lands purchased by third parties and conveyed to the petitioner, was sufficient without alleging the regularity of the proceedings leading up to the issuance of such deed where the petition showed the due execution and delivery of State deeds and making of a demand on the defendant, who was in possession and to whom the petitioner exhibited the deeds conveying title to him.</p> <p>2. Same — Writ of Possession — Ejectment—Remedy.</p> <p>The trial court correctly held that a writ of possession was the proper remedy to put the purchaser of tax homestead lands in possession, that the action of ejectment, was not the sole remedy. 1 Comp. Laws, § 3959, as amended (1 How. Stat. [2d Ed.] §1911).</p> <p>3. Taxation — State Tax Lands.</p> <p>After six months from the date on which deeds to the State of tax homestead lands have been recorded under section 127 of the general tax law, Act No. 107, Pub. Acts 1899 (1 How. Stat. [2d Ed.] § 1898), the owner of the premises is precluded from contesting the validity of the proceedings.</p>

Case in justice’s court by Herman Hyman against Joseph Kadrovach. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Case by Carrie M. Westover, as executrix of the estate of Charles M. Westover, deceased, against the Grand Rapids Railway Company for the unlawful killing of plaintiff’s intestate. Judgment for defendant. Plaintiff brings error.

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

Bill by Milo Hatt and others against William Green and others for an accounting and other relief. From a decree for defendants, complainants appeal.

<p>1. Fraud — Misrepresentation—Value—Exchange.</p> <p>In an action for deceit and false representations whereby plaintiff was induced to exchange her property for a farm, representations that defendant’s farm was worth $4,000, that he had purchased it for that amount, that he had sold the property on a land contract for $4,000, receiving a payment of $1,500, that the buildings were good and the soil productive and the farm was occupied by a family which were cultivating it, being false, sufficiently sustained plaintiff’s claim of fraud, and entitled plaintiff to a writ of capias ad respondendum.</p> <p>2. Same — Consideration—Contracts.</p> <p>Nor was the defendant relieved of the consequences of his wrongful act because no default had occurred upon the land contract before plaintiff commenced her action; affidavits establishing that the contract called for nearly three times the actual value of the land tended to show that the plaintiff had been defrauded in the exchange.</p> <p>3. Same — Rescission—False Representations.</p> <p>No rescission or restitution is necessary as a condition precedent to an action for damages for fraud and deceit.</p>

Case by Bernard Ruscyk, by his next friend, against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.

<p>Error to Ottawa; Cross, J.</p> <p>Assumpsit by Chauncey M. Blakeslee against Frederick F. Peabody for broker’s commissions. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Contracts — Sales—Words and Phrases — Scrap Iron.</p> <p>Under a written contract to sell-all the scrap iron owned hy plaintiff at a place specified, defendant was not entitled to claim materials, dynamos and engines which were capable of being repaired and placed in running order.</p> <p>2. Same — Construction—Performance.</p> <p>Failure of defendant to furnish shipping directions at the request of the vendors of certain scrap iron, the required information not appearing in the written contract between the parties, excused the vendor for not shipping the merchandise.</p> <p>2. Sales — Interpretation of Contract.</p> <p>Under the provisions of a contract of sale of certain scrap, specifying the kinds and prices, railroad weight at the point of shipment to constitute the basis of settlement, evidence that the railroad company weighed the respective kinds of material separately and the weights so found, was conclusive on the buyer.</p> <p>4. Evidence — Contracts—Parol Testimony.</p> <p>Parol testimony is not competent to vary the plain, unambiguous terms of a writing.</p>

<p>1. Customs and Usages — Railroads—Evidence.</p> <p>In an action for negligent injuries to the employee of a sugar factory, who was injured by defendant’s train in switching upon the property of plaintiff’s employer, his testimony that he had been employed about ten days by the sugar company, that it was customary when defendant did switching in the yard of the factory for the conductor of the train or some other employee to precede the engine on the track to give warning of its approach, not corroborated by plaintiff’s other witnesses who had been familiar with the conditions for a longer time than had plaintiff, and who testified that after the original warning no further effort was made to notify the workmen of the approaching train, except that a lookout was stationed on the first car, held, insufficient to establish a custom which would be binding on the defendant.</p> <p>2. Same — Railroads—Negligence.</p> <p>A custom must be certain, uniform, invariable and notorious, that is, known to all persons of intelligence having to do with the subjects to which it relates.</p>

Bill by Mary Emery against Henry M. Airth and Arthur F. Watson for a decree discharging a certain mortgage as paid and satisfied and determining the amount due, if any. Defendant Airth filed a cross-bill for an accounting and the codefendant defaulted. From an order denying a motion to open his default, defendant Watson appeals.

Assumpsit ■ by Gustave H. Fuhrman against the Sun Insurance Office of London upon a policy of fire insurance. Judgment for plaintiff and defendant brings error.

<p>1. Adverse Possession — Landlord and Tenant — Possession.</p> <p>Acts of ownership such as to openly and publicly indicate an assumed control or use of the premises, sufficiently sustain the claim of adverse possession; the occupation need not be such as to inform a passing stranger that the person in possession claims title, but if it would advise the owner in ■ case he visits the premises that the person in possession claims to hold adversely the notice is sufficient.</p> <p>2. Evidence — Cross-Examination—Adverse Possession.</p> <p>Where it appeared from the proofs that the defendant’s title by adverse possession was complete not later than 1897 and in 1907 the claimant entered into a contract to sell the premises, providing that $500 should be deposited in a bank to remain five years unless the cloud on the title was removed before the expiration of the period, the trial court did not commit prejudicial error in refusing to permit the plaintiff’s counsel to cross-examine such witness relative to the reason for inserting the five-year limit.</p> <p>3. Same.</p> <p>Where the holder of certain tax titles put a tenant into possession, claiming to own the premises, and the tenant actually occupied the house and garden mentioned in the lease, and the instrument provided that he should permit no trespass, his occupancy was enough to apprise the original owners that an adverse claim was asserted.</p>

<p>Certiorari by the Michigan Screw Company to review an award of the industrial accident board to William McCoy, claimant.</p>

<p>1. Mines and Mining — Negugence — Evidence — Expert Testimony — Witnesses.</p> <p>On tbe trial of an action for injuries sustained in tbe mine of defendant by tbe giving way of certain timbers supporting a “raise,” tbe opinion of a miner wbo bad been in that line of employment for ten years and upwards and was familiar with the work of constructing raises, that certain timbering was usually done in a way which he described, was properly received in evidence and defendant’s objection that he was not qualified to testify to the custom was correctly overruled, defendant not cross-examining the witness and attempting to raise the point by a general objection and where defendant’s captain and foreman testified to similar facts. Ostrander, J., dissenting.</p> <p>2. Same — Evidence.</p> <p>Another witness who gave expert evidence as to the proper method of timbering was also correctly allowed to testify where he had been a miner for a long period and had seen the method of doing similar work and had practical experience.</p> <p>3. Same — Evidence — Mortality Tables — Permanency oe Injuries.</p> <p>Evidence that plaintiff’s leg- was broken and became shortened as a result of injuries sustained in a mine, that he suffered other serious injuries, that some of them would be permanent to some extent, authorized the admission in evidence of the mortality tables; and it was sufficient to sustain a charge and verdict for 'future pain and loss of earning power and for future expenses.1</p> <p>4. Trial — Charge—Claims.</p> <p>It was also proper for the court to state to the jury the claim of the plaintiff whose testimony supported the instructions.</p> <p>5. Same — Safe Place — Assumed Risk.</p> <p>The doctrine that it was the master’s obligation to furnish a safe place, applied to the insufficient or defective construction of a raise in defendant’s mine, which was not securely timbered or supported and gave way injuring the employee: the duty could not be delegated and as the evidence tended to show that plaintiff had no warning or knowledge of the danger he could not be held to have assumed the risk of the alleged negligence.2</p>

Assumpsit by Henry E. Myers and Edwin F. Holmes as administrators of the estate of John L. Woods, deceased, against the Muskegon Improvement Company, George L. Erwin and others upon a promissory note. From a judgment for plaintiff on a verdict directed by the court, defendant George L. Erwin brings error.

, presiding. Mary McCarthy presented for probate an alleged will of Dennis Dailey, deceased, which was allowed in the probate court and the contestants appealed to the circuit court; being joined by the said Mary McCarthy, in contesting the validity of the instrument. Martin Whalen, administrator of the estate of decedent, and the proponents bring error from a judgment denying the probate of the will.

<p>Appeal from Wayne; Hally, J.</p> <p>Bill by John B. Lepire against William C. Klenk for an injunction. From a decree for complainant, defendant appeals.</p>

Assumpsit by John H. Algate against the city of Lansing for breach of a contract for construction of a sewer. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.

Margaret McCartney and others presented for probate the will of Bridget Quinn, deceased, which was admitted to probate in the probate court and contestant Margaret Saul appealed to the circuit court. Judgment for contestants and proponents bring error.

<p>Divorce — Annulment—Marriage.</p> <p>Evidence of the complainant in divorce proceedings that his wife had been guilty of improper relations with other men prior to her marriage, met by her testimony that the complainant also had illicit relations with her, held, by an evenly divided court, to be insufficient to sustain the averments of the bill.</p>

<p>Error to Berrien; Coolidge, J.</p> <p>Case by Herman Meyer against the Michigan Central Railroad Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Bill by Jacob Heethuis against William F. Kerr, Antha D. Keys and others to quiet title to real property. From a ‘decree for complainant, defendant Keys appeals.

Case by August Beach, administrator of the estate of Louis Beach, deceased, against the Michigan Central Railroad Company for the negligent killing of decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by Clyde J. Holmes against Charles E. Soule and others. From a decree dismissing bill and defendants’ cross-bill, both parties appeal.

<p>Error to Ingham; Wiest, J.</p> <p>Assumpsit by Louis M. Evans and Charles L. Fratcher against Henry Russell for brokers’ commissions. Judgment for plaintiffs. Defendant brings error.</p>

Trover in justice’s court by William Barbrick against the White Sewing Machine Company for conversion of a sewing machine. From a judgment for plaintiff, defendant appealed to the circuit court in which judgment was rendered for the plaintiff. Defendant brings error.

, presiding. Replevin by James O’Neil against Arthur Brooks for two teams of horses and their harness. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Malicious Prosecution — Elements.</p> <p>To entitle a plaintiff to recover' for malicious prosecution, three things must concur and be established by a preponderance of the evidence: that the prosecution was begun and came to a legal termination in favor of the plaintiff, that the defendant instituted it without probable cause, and that in so doing he was actuated by malicious motives.</p> <p>2. Same — Malice—Trial.</p> <p>If there is any evidence in the case tending to prove malice, the question is for the jury to determine whether a malicious motive existed: it may be proved by direct evidence or it may be inferred from circumstances. And where there was evidence of acts of violence committed by the defendant and expressions of ill will, with facts and circumstances in the dealings of the parties from which malice might be inferred, the issue became one of fact for the jury.</p> <p>3. Same — Intoxicating Liquors — Probable Cause.</p> <p>Where the defendant made a complaint before a justice of the peace, charging the plaintiff with selling him a quart of whisky and the plaintiff denied that he sold or furnished a bottle of whisky at the time and place stated, i. e., in a county that had adopted prohibition, defendant’s testimony that plaintiff did sell the bottle of whisky as charged, furnished evidence of probable cause for making complaint, but if such testimony was untrue as charged by the plaintiff and as shown by his proofs, there was want of probable cause for the prosecution, and plaintiff’s evidence made out a prima facie case.</p> <p>4. Same — Hearsay Evidence — Preliminary Examination — Witnesses.</p> <p>Evidence offered to show what the witnesses stated in their examination before the justice of the peace was correctly excluded, the testimony was inadmissible to establish the contention that the discharge of plaintiff from custody was erroneous and a miscarriage of justice.</p> <p>5. Same — Evidence—Criminal Law — Other Oeeenses.</p> <p>Proof of other offenses similar to the one with which defendant charged the plaintiff, who was taken into custody for the offense complained of, is not competent, In an action for malicious prosecution, to prove the plaintiff’s guilt of the offense for which he was arrested.</p> <p>6. Same.</p> <p>Nor did the court err in charging the jury that evidence of the plaintiff’s discharge from arrest was admitted solely to prove the termination of the criminal proceeding and could not be considered as proof of want of probable cause.</p>

Case by Jan Janik against the Ford Motor Company for personal injuries. Judgment for defendant upon a verdict directed by the court. Plaintiff brings error.

<p>Automobiles — Evidence—Negligence.</p> <p>Evidence, in an action for personal injuries,- tending to show that the defendant’s automobile collided with plaintiff who was riding on a bicycle, that defendant in operating his car turned the corner on the wrong side of ■ the street intersection, and that he was driving at an excessive rate of speed, sustained a judgment for the plaintiff, although the defendant’s evidence tended to dispute the claim.</p>

Case by Matthew Duffy against John Charters for malpractice and negligence in treating injuries of plaintiff. Judgment for plaintiff. Defendant brings error.

Bill by Julia M. Gates and others against M. G. Sebald and another for injunction and other equitable relief. From a decree for defendants, complainants appeal.

Bill by Eugene Menard as executor of the estate of Harriet Lauzon, deceased, against Louise Nault Campbell for the construction of the will of decedent. From a decree for defendant, complainant appeals.

Petition by the city of Detroit against Henry M. Weil and others for the taking of private property for public use, etc. From an order sustaining a demurrer to defendant’s plea to the jurisdiction, defendant Weil brings error.

Assumpsit by the Westchester Appliance Company against John Englehardt to enforce the liability of directors of a corporation as provided by Act No. 137, Pub. Acts 1907 (4 How. Stat. [2d Ed.] § 9543). Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Kent; McDonald, J.</p> <p>Case by Joseph Meyer against the Grand Rapids Chair Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Assumpsit in justice’s court by Samuel Crawl against Jess D. Dancer for goods sold and delivered. From a judgment for plaintiff, defendant appealed to circuit court. Judgment for plaintiff. Defendant brings error.

Assumpsit by the Reinforced Concrete Pipe Company against David W. Boyes and another for an amount due under a special contract. Judgment for plaintiff on a directed verdict. Defendants bring error.

, J. Bill by Pearl E. Lerche and others, by next friend, against Fred Kishpaugh, administrator of the estate of Charlotte M. L. Still, deceased, and another, for the enforcement of an alleged trust. From a decree for complainants, defendant Kishpaugh appeals.

, presiding. Case by Jacob Maki against the Isle Royale Copper Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Mandamus by Allen G. Forsythe against Edward D. Kinne, circuit judge of the county of Washtenaw, to compel respondent to vacate a writ of capias ad satisfaciendum.</p>

Bill by Neil J. Berston against Julius Gilbert for the forfeiture and cancellation of a land contract. From a decree for defendant, complainant appeals.

<p>Error to the recorder’s court of the city of Detroit; Phelan, J.</p> <p>Francesco Cona was convicted of murder in the first degree.</p>

<p>1. Criminal Law — Negligence — Careless Use oe Firearms — Weapons — Statutes.</p> <p>Under 3 Comp. Laws, § 11510 (5 How. Stat.. [2d Ed.] § 14559), providing that “any person who shall discharge without injury to any other person, any firearm, while intentionally, without malice, aimed at or toward any person, shall be guilty of a misdemeanor,” etc., acts carelessly done, without design to do mischief, are punishable.</p> <p>2. Same — “Toward”—Construction oe Statute.</p> <p>It is sufficient, in a prosecution for violating the statute, to show that the accused was making use of a rifle pointed in the direction of a passenger on a car and discharged the weapon in that direction, without striking any one. The word “toward” means in- a course or line leading in the direction of.</p> <p>3. Trial — Argument—Conduct oe Prosecuting Attorney.</p> <p>Argument of the prosecuting attorney, in the course of which he stated that there were better men now in State prison than the respondent, was not prejudicial error, in the absence of a showing in what connection the statement was made or what proposition the prosecuting attorney was discussing.</p> <p>4. Same — Charge.</p> <p>Where the accused claimed that it was his companion who fired off the rifle at the time alleged by the prosecution, and the general charge of the court submitted this issue to the jury, instructing them that the elements of the offense must be proved beyond a reasonable doubt, and unless they were satisfied beyond a reasonable doubt that the respondent did fire the rifle, they must acquit him, the instructions were sufficient.</p>

Mandamus by the board of supervisors of Jackson county against the board of State auditors to require respondents to allow and audit a bill of costs in a criminal case.

Exceptions before sentence from the superior court of Grand Rapids; Stuart, J. Frank S. Damskey was convicted of violating the law relating to the keeping of saloons closed on Sum day.

Mandamus by Edward Lichtig against William G. Gage, Saginaw circuit judge, to compel the respondent to vacate an order dissolving an injunction in a suit brought by relator to restrain one J. W. Coles from exercising the office of president of the school board of the city of Bay City.

<p>1. Evidence — Expert and Opinion Testimony — Negeigence.</p> <p>Having shown all the facts and surrounding circumstances, the plaintiff in a personal injury case was not entitled to have a witness state his opinion as to what caused the wheel of the truck that plaintiff was driving, when his injury occurred, to come off, permitting one side of the vehicle to drop to the pavement.</p> <p>2. Master and Servant — Assumption oe Risk — Negeegenoe.</p> <p>In an action for personal injuries, the plaintiff, a teamster, who admitted that he was charged with the duty of inspecting the truck which he drove and with oiling the wheel, assumed any risk of the nut or burr on the axle of the front wheel coming ofE, a result which was not shown to have occurred because of the flattening of the front axle by use and wear, as claimed by him, although such condition necessitated more frequent oiling.</p>

Assumpsit by Albert A. Pease, as administrator of the estate of Charles Jennings, deceased, against Abner Jennings for the conversion of certain certificates of deposit. Judgment for plaintiff, and defendant brings error.

Assumpsit by Thomas W. Snook & Son, a copartnership consisting of John R. Snook, the estate of Thomas W. Snook and others, against the Mt. Clemens Sugar Company for breach of a contract of sale. Judgment for plaintiffs and defendant brings error.