Volume 181 — Michigan Reports

Case by John J. Eichkern, as administrator of the estate of Olavi R. Wilhonen, deceased, against the Park Brewing Company for the negligent killing of deceased. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by the Michigan National Bank against Sarah H. Hill and others to foreclose certain mortgages. From an order overruling a demurrer to complainants’ bill, defendants Sarah H. Hill and William E. Hill and Company appeal.

<p>Error to Missaukee; Lamb, J.</p> <p>Case by Herman Geerds against the Ann Arbor Railroad Company for the negligent killing of a cow. Judgment for plaintiff. Defendant brings error.</p>

Trespass by John Butcher against Will Bums and others for cutting timber on the property of plaintiff. Judgment for plaintiff. Defendants bring error.

Assumpsit in justice’s court by William and Herman Cross, copartners as Cross Brothers, against George E. Leonard for money had and received. From a judgment for the defendant, plaintiffs appealed to the circuit court. Judgment for defendant. Plaintiffs bring error.

Case by William Lane against the Au Sable Electric Company for an unlawful eviction. Judgment for plaintiff on a directed verdict for less than the damages claimed, and he brings error.

Case by James T. Bennett against the Michigan Pulpwood Company for certain poles and timber. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to the recorder’s court for the city of Detroit; Phelan, J.</p> <p>Kiyde Leonzo was convicted of robbery, being armed, etc.</p>

Mandamus by Fred Bender against Alfred J. Murphy, one of the circuit judges for the county of Wayne, to compel respondent to vacate an order opening the plaintiff’s default in an action wherein relator was defendant.

Proceedings by James Whaley, highway commissioner, to lay out a highway. On appeal by Mary Cor-win, one of the defendants, to the township board, the judgment of said commissioner establishing such highway was reversed and Enoch Rogren, one of the petitioners, appealed to the circuit court. Judgment for petitioners. Defendant Corwin brings error. Affirmed.

Exceptions before sentence from the superior court of Grand Rapids; Stuart, J. Peter Jansma was convicted of assault with intent to commit rape.

Ejectment by Seth D. Estes against the Muskegon County Agricultural & Driving Park Association and others. Plaintiff having deceased, the cause was revived in the names of his heirs, Simeon Estes and others. Judgment for plaintiffs. Defendants bring error.

<p>Certiorari to the industrial accident board by Frank M. Blair and others, receivers of the Pere Marquette Railroad Company, to review an order awarding compensation to Philip Limron for personal injuries.</p>

<p>Error to Genesee; Wisner, J.</p> <p>Assumpsit by August Burchy against Edbert M. Carpenter for fraud. Judgment for defendant. Plaintiff brings error.</p>

<p>Error to Manistee; Withey, J.</p> <p>Case by Levi Cribbs against Frank Stiver for negligently setting fires. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Ottawa; Cross, J.</p> <p>Assumpsit by Charles E. Van Slyke against W. J. Rooks and others upon a promissory note. Judgment for plaintiff. Defendants bring error.</p>

Case by Fred J. Gregory against the Oakland Motor Car Company for loss of the services of his wife because of personal injuries. Judgment for plaintiff. Defendant brings error.

<p>1. Bills and Notes — Trial — Witnesses — Cross-Examination— Fraud.</p> <p>Cross-examination of plaintiff’s husband, who claimed to have obtained the note upon which action was brought for a loan of $300 and for an existing indebtedness, was improperly restricted by the trial court, who refused to permit counsel for the defendant to ask him where he got the $300 in support of the defense that the note was forged and the claim fraudulent.</p> <p>2. Same.</p> <p>Where the defense of fraud is set up, a wide latitude should be allowed upon the cross-examination of a witness who participated in the transaction.</p> <p>3. Sake — Defenses—Cross-Examination.</p> <p>Defendant claimed, in an action upon a promissory note, that he had not executed the instrument which was written in his wife’s handwriting upon one of the forms taken from the book of the defendant. His wife testified that the payee came to her and asked her to draw up two $500 notes for the use of his son who owed him $1,000; that she prepared the notes in blank, taking a form from her husband’s book of blank forms, and gave them to the payee. Defendant’s counsel asked the payee, who was a witness, whether he had not subsequently attempted to trade a note of his son for an automobile, and the witness denied doing so. Thereupon the attorney offered to show that the witness did have a note of his son at the time inquired about, and offered to trade it for the automobile. The court excluded the testimony. Held, that the testimony was admissible as bearing upon the probability of the testimony of the wife of defendant, that the notes were' prepared for the' son and not for her husband to sign.</p> <p>4. Same — Impeachment.</p> <p>Such testimony was also competent to impeach the testimony of the payee who had denied having notes of his son, or that there was any such indebtedness.</p> <p>5. Witnesses — Impeachment—Reputation.</p> <p>Also it was erroneous to strike out testimony of impeaching witnesses who stated that they knew plaintiff’s principal witness, had known him for a number of years and named persons who had questioned the veracity of the witness for plaintiff: one of the impeaching witnesses stating that he had lived in an adjoining township from him, that he had heard numerous persons who lived near the witness talk about his truthfulness, and the testimony being struck out because the witness could not name any prsons whom he had heard make statements concerning the matter.</p> <p>6. Appeal and Error — Trial—Conduct of Court.</p> <p>Unless the claim that the trial court made prejudicial remarks has been brought to the notice of such court, it will not be considered on error.</p> <p>7. Jury — Qualifications.</p> <p>A juror will not be held disqualified because he is an alien, if the record permits an inference that he might be a qualified elector. Also, the objection is not well taken, after judgment in a civil action.</p> <p>8. Bills and Notes — Weight of Evidence.</p> <p>Held, that the verdict was not manifestly against the weight of the evidence.</p>

Bill by David S. Zemon and Philip D. Gordon, co-partners as David S. Zemon & Company, against Norman B. Trim and others to reach equitable assets of the defendants upon a judgment. From a decree for defendants, complainants appeal.

Case by Rosie Purulewski against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant street railway brings error.

<p>Appeal from Genesee; Wisner, J.</p> <p>Bill by Harriet Z. Emery against William J. Emery for divorce. From a decree for defendant, complainant appeals.</p>

Jeannette Bolthouse presented her claim against the estate of Jannetje De Spelder, deceased, and appealed to the circuit court from an order disallowing the claim. Judgment for claimant and Elizabeth De Spelder, executrix of said estate, brings error.

, presiding. Bill by Frederick L. Perkins, as executor of the estate of Harriet M. Perkins, deceased, against Willis J. Perkins and others. From an order denying a motion for rehearing of the defendant named, he appeals.

, presiding. Assumpsit by John W. Karwick against Marion R. Pickands for breach of a contract to tow a raft of logs. Judgment for plaintiff. Defendant brings error.

Mandamus by Malcolm C. Sinclair against the common council of the city of Grand Rapids to compel respondent to recount the votes cast for mayor. An order granting the writ is reviewed by respondent on writ of certiorari.

Mandamus by Thomas E. Glinnan against James Phelan, one of the judges of the recorder’s court of the city of Detroit, to require the respondent to vacate an order changing the venue of a criminal proceeding.

Mandamus by J. Frank Stevens against Frederick C. Martindale, secretary of State, to compel the respondent to accept and file a petition to permit the relator to become a candidate for State representative in the counties of Missaukee and Kalkaska.

Bill by Frankie E. Marsh and others against the Breen Iron Company and others for an accounting and further relief. From a decree for defendants, complainants appeal.

Bill by William J. Coffey against William A. Mc-Gahey and others for the appointment of a receiver, accounting, and injunction. From a decree for complainant, defendants appeal.

Bill by the city of Battle Creek against the Go'guac Resort Association, Limited, and others for an injunction. From a decree for complainant, defendants appeal.

Assumpsit by Reuter Hub & Spoke Company against John C. Hicks and another to enforce the statutory liability of defendants as directors of a corporation which made default in filing its annual report. Judgment for plaintiff. Defendants bring error.

Case by Edward Frohlich, executor, and,Hannah. Frohlich, executrix, against John F. Deacon and others, for conspiracy and unlawful combination and restraint of trade. An order sustaining a demurrer to the declaration is reviewed by the plaintiffs on writ of error.

Quo warranto proceedings by Jacob J. Van Riper, Attorney General, against James F. Joy and others to determine the right of the respondents to exercise the corporate privileges and franchises of the Detroit, Grand Haven & Milwaukee Railway Company. On motion for rehearing.

Bill by Thomas Vernakes against the city of South Haven for an injunction and other relief. From a decree for defendant, complainant appeals.

Assumpsit by William F. Carroll against the Palmer Manufacturing Company for breach of a contract of employment. Judgment for defendant on a directed verdict. Plaintiff brings error.

Assumpsit by Joseph G. Gourlay and Mary L. Gourlay against the Insurance Company of North America upon a contract of insurance. An order overruling a demurrer to plaintiffs’ declaration is reviewed by the defendant on writ of certiorari.

Bill by Merritt Chandler against the Richardson Lumber Company and another to quiet title to certain lands. From a decree for defendants, complainant appeals.

Exceptions before sentence from Marquette; Flannigan, J. John B. Perenchio was convicted of unlawfully selling intoxicating liquors in the township of Forsyth, Marquette county, without' a license.

Case by Loren Glann against Ripley White and Kirk White, copartners as White Bros., for breach of warranty of the soundness of a team of horses. Judgment for plaintiff. Defendants bring error. This action arises from an alleged breach of warranty of the soundness of a team of horses sold by defendants to plaintiff on April 24, 1912, at Lapeer, Mich.

Assumpsit by Arland W. Johnson against John G. • O’Neill and another for work, labor and services. Judgment for plaintiff. Defendants bring error.

Assumpsit by Peter Donnelly against the Michigan Malleable Iron Company for breach of a contract of employment. Judgment for plaintiff for less than his claim. Plaintiff brings error.

Case by Harvey Ferguson, by next friend, against the county of Muskegon for personal injuries. From a judgment sustaining a demurrer to the declaration, plaintiff brings error.

Bill by the Holland Furnace Company against Emil Hartig and another for the enforcement of a mechanics’ lien. From a decree for defendants, complainant appeals.

Bill by Orange S. Mason and others against the board of managers of the Michigan soldiers’ home for an injunction, accounting and other relief. From a decree for complainants, defendants appeal.

Mandamus by Daniel J. Grobbel against the board of water commissioners of the city of Detroit to compel respondent to revoke a resolution discharging relator from the employment of the commission. An order granting the writ is reviewed by respondent on certiorari.

Case by Elbridge F. Bacon against James D. Candler and George V. Candler, copartners as J. D. Candler & Company, and Vinton Company, a corporation, for personal injuries. Judgment for defendants on a verdict directed by the court. Plaintiff brings error.

<p>Master and Servant — Interstate Commerce — Statutes—Railroads — Eellow-Servants.</p> <p>Recovery is permissible only under the Federal act abolishing the fellow-servant rule and modifying the doctrines of contributory negligence and assumed risk (35 U. S. Stat. § 65, U. S. Comp. Stat. Supp. 1911, p. 1322; see, also, Act No. 104, Pub. Acts 1909, 4 How. Stat. [2d Ed.] §4110 et seq.), in favor of an employee who was engaged at the time of his injury in repairing a draw-bar of a freight car that belonged to the Baltimore & Ohio Railroad Company and that had been used to bring coal into Michigan from a foreign jurisdiction.</p>

Certiorari by the Riverside Storage & Cartage Company and Standard Accident Insurance Company to the industrial accident board to review a finding of the board awarding compensation to Lillian Bayne for the death of her husband, Harry Bayne.

, J. Henry Stoner presented his claim against the estate of William McConaughy, deceased, for services performed. From a finding of the commissioners on claims disallowing the same in part claimant appealed to circuit court. Judgment for claimant. Defendant executor brings error.

Assumpsit by George P. Hummer against the Midland Casualty Company on a policy of accident insurance. Judgment for plaintiff. Defendant brings error. A policy issued by the defendant company insured the plaintiff against bodily injury through accidental means, and for certain injuries, among them the loss of one eye, promised an indemnity of $2,500 if the injury within 100 days from the date of the accident resulted in such a loss.

<p>Error to Chippewa; Fead, J.</p> <p>Case by Joseph T. Johnson against the Union Carbide Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Genesee; Wisner, J.</p> <p>Ejectment by Samuel J. Wilson against Charles Sauble and others. Judgment for defendants on findings of the trial judge. Plaintiff brings error.</p>

Bill by Charles C. Stewart and another against Vergil L. Stark for an injunction. From a decree for complainants, defendant appeals.

Case by Fred J. Evans as administrator of the estate of David C. Harsen, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the unlawful killing of decedent. Judgment for' plaintiff. Defendant brings error.

Case by Bertha Cressler, administratrix of the estate of Charles F. Cressler, deceased, against the King Paper Company for the negligent killing of decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Assumpsit by the Caledonia Coal Company against the Consolidated Coal Company for goods sold and delivered. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Mortgages — Foreclosure—Accounting.</p> <p>In a suit by tbe wife of defendant to foreclose two mortgages wbicb ber husband bad given to her as security for money advanced to him, as complainant claimed, evidence considered, and held, to support ber contention.</p> <p>2. Same — Accounting—Equity.</p> <p>The defendant husband was not entitled to an accounting, where he abandoned the farm mortgaged and went to Canada, leaving his wife in possession of the farm and some of the personal property, in order to escape pressing obligations due to creditors and other mortgagees, and where he borrowed money from her from time to time and it appeared that the question of the amount obtained by the complainant from the farm was involved in an action on the law side of the court.</p> <p>3. Frauds, Statute oe — Parties—Oral Contracts — Part Pereormance.</p> <p>Where defendant had become incompetent and been committed to the charge of a guardian, and his wife claimed to hold various claims against him,' including two mort- ' gages upon his real property, of which she remained in possession, and where she orally agreed with his guardian and heirs to pay the heirs of defendant a stated sum for their interest in his property, giving notes to them for the agreed consideration, before a writing satisfactory to all parties had been executed, specific performance could not be granted the guardian of the husband in a foreclosure suit to which none of the heirs were parties defendant, and a cross-bill was properly dismissed even if the contract was enforceable.</p> <p>4. Contracts — Future or Contingent Interests — Public Policy.</p> <p>Agreements to sell or convey the prospective interests of heirs in their living ancestor’s estate are not regarded with favor and are rarely, if ever, sustained, without the consent of the ancestor, who is generally held to be entitled to know the situation of his heirs with reference to each other, to himself and his property. His insanity or. incompetency is not a ground for making an exception to the general rule.</p>

<p>Error to Cass; Des Voignes, J.</p> <p>Attachment by Agnes Stevens against Daniel W. Stevens for money had and received. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Bills and Notes — Execution—Admissions—Evidence.</p> <p>The maker of a note signed by her husband, with the qualifying phrase “as surety,” admitted the execution of the note where she did not deny it under oath, and testified that she signed the instrument, and she must be held to have executed it in the manner and form alleged and as shown by the instrument, she as principal and her husband as surety.</p> <p>2. Same — Evidence.</p> <p>The fact that the husband signed the note “as surety” under his wife’s signature may be regarded as of significance in determining her relation to and participation in the transaction for which the note was given, namely, the purchase of a lighting plant to be installed upon property that she had an interest in.</p> <p>3. Same — Parties—Sales—Conclusions—Evidence.</p> <p>Defendant’s testimony that the note was given for a lighting plant which was installed in her mother’s home and that the witness signed the note, but the husband was the one who purchased such plant, was a conclusion.</p> <p>4. Same — Husband and Wife.</p> <p>If the note was given for a debt of her husband it would be void as to her, no matter in what capacity she or he signed it.</p> <p>5. Same — Separate Estate oe Married Women.</p> <p>If the plant was purchased either by her or by her husband for her, to be installed as a fixture on realty in which she had an interest and her husband none, the note given for the purchase price was valid.</p> <p>6. Estates — Contingent Interests — Remainders.</p> <p>If it is possible to construe an estate as vested rather than contingent, the law favors such construction. 3 Comp. Laws, § 8795 (4 How. Stat. [2d Ed.] § 10635).</p> <p>7. Same — Wills—Vested Remainder.</p> <p>An estate in a farm created by the will of defendant’s father, which devised to the widow, her mother, a life interest, and provided defendant and her sister should have the remainder in equal shares if both survived the life tenant, if not, to the survivor, and if neither survived, to testator’s nearest relative, was a vested, not' a contingent, interest, subject to be defeated" by the death of the devisee of such remainder.</p>

Application to the Industrial Accident Board for an award of compensation against Frank B. Whittlesberger for the death of Rudolph Reck. A judgment for the applicant is reviewed by said Whittlesberger on writ of certiorari.

Assumpsit in justice’s court by Henry W. Jones and Daisy M. Jones against Charles H. Berkey for damages for breach of a contract for the sale of lands. From a judgment for defendant, plaintiffs appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

<p>Error to Wayne; Van Zile, J.</p> <p>Stephen Rogulski was convicted of. manslaughter.</p>

, presiding. Bill by William M. Jacques against George W. Bosnian to remove a cloud from complainant’s title to lands. From a decree for defendant, complainant appeals.

Bill by Warren C. Dean against Harriet Dean for divorce. From a decree for defendant, granting a divorce on her cross-bill, complainant appeals.

<p>1. Master and Servant — Negligence—Elevators.</p> <p>Where plaintiff was caught by the freight elevator from which he was attempting to alight at the second landing, and it was not shown that the method of inclosing the shaft had anything to do with the injury or was an improper method, the court should- have directed a verdict for the defendant, although it was the contention of the plaintiff that the shaft was not sufficiently inclosed, in violation of section 12, Act No. 285, Pub. Acts 1909 (2 How. Stat. [2d Ed.] §4020).</p> <p>2. Same — Personal Injuries — Evidence,</p> <p>It was erroneous to exclude testimony of experts, offered by, defendant, tending to show that the method of inelosure was sufficient.</p> <p>3. Same.-</p> <p>Even the breach of a statutory duty is not actionable unless such breach causes injury either proximately or concurrently.</p>

Bill by Gideon L. Hoyt, as administrator of the estate of Matthew Shittenhelm, deceased, against Ella' Gillen and another for the recovery as a part of said estate of a note and mortgage. From a decree for defendants, plaintiff appeals.

<p>Error to Genesee; Wisner, J.</p> <p>Assumpsit by the Northville State Bank against the Detroit Silver Refining Company on a promissory note. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Bill by James Reid and others against the Church Balance Gear Company, Limited, and others, for the enforcement of a trust and to set aside the transfer of certain corporate stock. From an order sustaining a demurrer to complainants’ bill they appeal. The complainants are stockholders in the defendant the Church Balance Gear Company, Limited, which company was organized in July, 1903, under the title, Holson Motor Patents Company, Limited.

Bill by the City Lumber Company against Harry F. Hollands and others to foreclose a land contract. From a decree for complainant both parties appeal. The bill of complaint in this cause is filed for the purpose of obtaining foreclosure of a land contract dated January 19, 1912, covering a lot located at the northeast corner of Lincoln and Warren avenues, in the city of Detroit. It appears that in 1902 defendant Hollands had acquired title to the lot in question.

<p>1. Contracts — Construction—Accord and Satisfaction.</p> <p>It was a question for the court, not for the jury, whether the effect of a written contract for the purchase of agricultural implements to be resold, that contained the words “this contract to replace one made earlier in season,” was to supersede the previous agreement.</p> <p>2. Same — Evidence—Compromise and Settlement.</p> <p>And evidence showing that the plaintiff in written correspondence treated the second contract as controlling the liability of the defendant, justified the trial court in determining, as a matter of law, that the first agreement was superseded.</p> <p>3. Same — Sales—Acceptance.</p> <p>Defendant’s claim that he had not accepted the machines shipped to him under a contract of purchase was correctly submitted to the jury, plaintiff having requested the court to charge the jury relative to the contention.</p> <p>4. Witnesses — Presumptions—Failure to Produce.</p> <p>In an action for the price of certain agricultural machinery, the trial court did not err in charging that the jury might consider the failure of plaintiff to produce a material witness in its employ, as tending to show that his testimony would be unfavorable.</p> <p>5. Appeal and Error — Exceptions—Savino Questions for Review.</p> <p>On error an exception is necessary to review the action of the trial court in submitting a special question to the jury.</p> <p>6. Damages — Contracts—Sales—Pleading—Assumpsit.</p> <p>Under a declaration in assumpsit and bill of particulars claiming the value of certain machinery delivered to defendant, plaintiff could not, at the trial, seek a recovery for liquidated damages as stipulated in the contract of sale.</p>

, presiding. Case by Steve Kochin, as administrator of the estate of Mike Kochin, deceased, against the Superior Copper Company for the negligent killing of decedent. Judgment for defendant. Plaintiff brings error.

Case by Theodore Hollingshead against the Detroit, Grand Haven & Milwaukee Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error. Plaintiff seeks to recover damages for personal injuries sustained by him while employed as a helper at defendant’s Grand Haven, Mich., roundhouse, about 4 o’clock in the morning of March 8, 1912. The roundhouse in use by defendant at that point was built many years ago.

Bill by Ottie Griffith and other's against Eunice Fuller for an accounting and other rélief. From a decree for complainants, defendant appeals. The complainants in this case are children and grandchildren of Nichols Cox, and are all of his legal heirs. They filed their bill of complaint for the purpose of setting aside a deed made by said Nichols Cox in his lifetime to the defendant.

William M. Agler applied to the industrial accident board for compensation for injuries received while in the employ of the Michigan Agricultural College. An order awarding compensation is reviewed by the respondent on certiorari. The applicant, who is a tinner and roofer by trade, was injured, on April 18, 1918, by falling from a ladder while making repairs on the buildings of the respondent.

<p>Appeal from Kent; Brown, J.</p> <p>Bill by Arthur W. Whittemore, et al., against the Baxter Laundry Company for the abatement of a nuisance. From a decree for complainants, defendant appeals.</p>

Assumpsit by George H. Mally against the Excelsior Wrapper Company and Philip Yund for the purchase price of a quantity of logs. Judgment for plaintiff. Defendant Excelsior Wrapper Company brings error.

Bill by the township of -Blendon against Chris De Jonge for an injunction and other relief. From a decree for defendant, complainant appeals.

Trover by Hans Wannebo against Fred J. Stone for the conversion of certain lumber. Judgment for defendant on a directed verdict. Plaintiff brings error. This is an action of trover brought by the plaintiff against the defendant to recover the value of a shipload of lumber, about 517,000 feet, taken by defendant from piles on the dock at Grand Marais, Minn., on or about November 15, 1911.

Bill by Ella L. Powell and Addison J. Pennock against Clara Pennock for a decree requiring defendant to account for property in her hands as part of the estate of Asa B. Pennock, deceased. From an order sustaining a demurrer to the bill of complaint, complainants appeal.

Hannan, administrator of .the estate of Helen R. G. Hannan,' deceased, against Harold J. Larsen for the cancellation of a certain conveyance, for incompeteney of the decedent. From a decree for defendant, complainant appeals.

Mandamus by Emery G. Luce and others, as board of county road commissioners of Branch county, against Frank F. Rogers, State highway commissioner, for an order requiring respondent to entertain a petition of relators for the establishment of a State reward trunk line highway. Writ denied. Relators bring error.

<p>Appeal from Wayne; Murphy, J,</p> <p>Bill by the building commission of the city of Detroit against Samuel Kunin and others for an injunction to prohibit an alleged violation of the municipal building code. From a decree for complainant, defendants appeal.</p>

<p>Appeal from Berrien; Bridgman, J.</p> <p>Bill by James Hayward against Julia Chase, Nellie K. Berkey and Others for the foreclosure of a mortgage. From a decree for complainant, defendant Berkey appeals.</p>

Assumpsit by Clinton Rogers and another against Martha Eaton for a sum due under a contract for the sale of land. Judgment for plaintiffs. Defendant brings error.

<p>Appeal irom Grand Traverse; Mayne, J.</p> <p>Bill by Harvey Morrison against the Queen City Electric Light & Power Company for an injunction. From a decree for defendant, complainant appeals. Affirmed.</p>

<p>1. Equity — Jurisdiction — Fraudulent Conveyances — Sales — Bulk Sales Act.</p> <p>A bill in equity may be maintained to reach the assets of a debtor that have been transferred or sold in violation of the statute governing sales of merchandise in bulk. Act No. 223, Pub. Acts 1905 (2 How. Stat. [2d Ed.] §2612 ét seq.).1</p> <p>2. Same — Laches—Limitations—Delay—Estoppel.</p> <p>Mere lapse of time will not defeat such a suit unless the defendants have been prejudiced by the delay.</p> <p>3. Same — Definitions.</p> <p>Laches involves negligence or omission to assert a right, which, considering the lapse of time, in connection with other facts and circumstances prejudicial to the interests of the adverse party, make it inequitable to recognize such right.</p>

<p>1. Evidence — Dying Declarations — Hearsay.</p> <p>Before a statement made by a victim of homicide is admissible in evidence as his dying declaration, a preliminary investigation must be made by the court to determine its admissibility; and should be of such nature as to satisfy the court that the declarant was in fact in extremis when he made the declaration and that he made it under a sense of impending death.1</p> <p>2. Same — Death—Homicide.</p> <p>Evidence that the declarant was under the conviction of approaching death should usually be offered as a basis for the admission of the declaration.</p> <p>3. Same.</p> <p>Where the only evidence that the court had, in a prosecution for homicide, of decedent’s belief that he was going to die, was in the declaration made by him, seven days before his death, and he was not, in fact, in extremis, and his statement included the accusation based on hearsay that respondent fired the fatal shot, it was incompetent.</p>

Bill by Emil Stender and others against Carl Stender and Elmer W. Mulford, executor of the estate of Hugo H. Stender, deceased, et al., for the construction of decedent’s will. From a decree for complainants, defendants appeal.

<p>Evidence — Brokers’ Commissions — Sale oe Real Estate.</p> <p>Testimony tending to show that defendant had listed his farm at $4,500 at a time prior to placing the property in plaintiff’s hands for sale, was erroneously received in contradiction of defendant’s claim that he only agreed to pay a stated commission per acre,' plaintiff claiming that he was to receive all the purchase price above $4,500; it was also improper to admit testimony to prove that the value of the property did not exceed $3,500.</p>

<p>Error to Genesee; Wisner, J.</p> <p>Herbert Ponsford was convicted of manslaughter.</p>

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

Mandamus by Matthew McCabe against the township board of the township of Burnside in Lapeer county, to require respondent to accept relator’s liquor bond. An order was entered denying the writ. Relator brings certiorari.

Bill by Edward S. Bennett against Arthur J. Clark and Nella S. Clark to foreclose a deed given as a mortgage. From an order overruling a demurrer to the bill, defendants appeal.

Bill by John Wallace Sons Company, a corporation, against Lucy A. Wilkinson, Adin H. Morton, and others, for the enforcement of a mechanic’s lien. From a decree for defendants, complainant appeals.