Volume 193 — Michigan Reports

, presiding. Assumpsit by M. J. Jones against the city of Battle Creek for salary as city stockkeeper. Judgment for plaintiff on a directed verdict. Defendant brings error.

Bill by Gamaliel I. Thompson and others against the Addison Flouring Mill Company to restrain the lowering of the waters in Devils Lake. From a decree for defendant, complainants appeal. Decree entered dismissing the bill. Plaintiffs in this action are all owners of property bordering Devils Lake, which is a small inland lake in Lenawee county.

, presiding. Assumpsit by W. C. Sterling & Son Company against Watson & Bennett Company for money had and received. Judgment for plaintiff on á directed verdict. Defendant brings error. W. C. Sterling & Son Company, plaintiff, does business at Monroe, Mich. Watson & Bennett Company, the defendant, does business at De Tour, Mich. Both companies are in the lumber business.

Exceptions before sentence from Kalamazoo; Weimer, J. Frank B. Lay, Jr., was convicted of embezzlement. Respondent in this case was indicted by a grand jury, and in said indictment was charged, together with one Victor L. Palmer and George T. Lay, with having embezzled from the Michigan Buggy Company,' a corporation of which respondent was vice president and a director, the sum of $42,446.52.

Mandamus by Cecil Clarke against George S. Hosmer, circuit judge of Wayne county, to require respondent to proceed and dispose of a suit for divorce.

Case by Grace Cinadar, administratrix of the estate of Charles Cinadar, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the negligent killing of plaintiffs intestate. Judgment for plaintiff. Defendant brings error.

, presiding. Case by Hugh McDonald against Louis C. Hall, Sr., and others, for conspiracy and malicious arrest. From an order overruling a demurrer to the declaration, defendants bring certiorari.

<p>Error to Berrien; Bridgman, J.</p> <p>Case by Harry Gordon against Logan J. Drake and another for personal injuries. Judgment for plaintiff. Defendants bring error.</p>

<p>1. Trial— Cross-Examination — Correspondence — Proof — Witnesses.</p> <p>A party to a cause, who offered a copy of a letter in which it was represented that some of defendants’ notes were inclosed, might be cross-examined as to whether he actually did inclose them in the envelope.</p> <p>2. Same — Payment—Examination.</p> <p>In support of a claim of payment, defendant’s wife was properly allowed to testify where the money used in payment came from and to refresh her recollection by referring to a book of account.</p> <p>3. Evidence — Hearsay—Correspondence—Letters.</p> <p>The trial court was also justified in excluding an explanation given in one of the said letters why the plaintiff returned the papers, on the ground that it was self-serving.</p> <p>4. Same — Directing Verdict.</p> <p>Evidence, in an action on a certain note that defendant claimed had been paid, considered and held, to justify the court in submitting the issue of payment to the jury.</p> <p>5. Same.</p> <p>The claim of plaintiff being that the contract on which plaintiff’s notes were based was invalid on the ground that it was entered into on Sunday, the court did not err in refusing to permit a witness to testify where plaintiff was on Monday morning, following the date in controversy.</p> <p>6. Amendment — Trial—Plea and Notice.</p> <p>When the amendment of a notice of payment was unnecessary the court did not commit reversible error in allowing defendant to correct it.</p>

Case by Mary A. Sykes against the village of Portland and the Citizens’ Telephone Company for personal injuries. Judgment for plaintiff. Defendants bring error.

Assumpsit by Frank W. Blair, Dudley E. Waters, and Samuel M. Felton, receivers of the Pere Marquette Railroad Company, against C. E. Van Slack and others for freight charges. Paul H. King was by stipulation substituted as plaintiff for Mr. Felton, and when Mr. Blair resigned his name was dropped, leaving as plaintiffs Paul H. King and Dudley E. Waters. Judgment for defendants on a verdict directed by the court. Plaintiffs bring error.

Case by Eleanor M. Johnston, executrix of the last will and testament of Andrew W. Johnston, deceased, against Harold C. Cornelius and Russell Cornelius for the negligent killing of plaintiff’s testate. Judgment for defendant Harold C. Cornelius on a directed verdict. Plaintiff brings error.

Edward H. Winn petitioned the Industrial Accident Board for an order setting aside an agreement entered into by him with the United States Fidelity & Guaranty Company, insurer of the Adjustable Table Company, for compensation for injuries received in the course of his employment. From an order setting aside said agreement and awarding additional compensation, respondents bring certiorari.

<p>Error to Wayne; Mandell, J.</p> <p>Assumpsit by Frederick C. Collin against George Kittelberger for broker’s commissions. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Houghton; O’Brien, J.</p> <p>John Lahnala was convicted of murder in the first degree.</p>

Assumpsit by David H. Warren and Charles Rummell, copartners as Warren & Rummell, against Tryntje Vandervelde for brokers’ commissions. Judgment for defendant on a verdict directed by the court. Plaintiffs bring error.

Bill by Elizabeth Steel against Victor J. Blanchette for a decree setting aside an execution levy on complainant’s homestead. From a decree for complainant, defendant appeals.

<p>1. Evidence — Automobiles—Principal and Agent.</p> <p>In a negligence action where the plaintiff charged that defendant’s servant negligently collided with and damaged his automobile, and the defendant contended that the driver was not in his employ and used the car without the consent or knowledge of such owner, evidence was admissible to show that the defendant had in a previous suit against plaintiff for the same collision averred in his declaration that he, by his agent or servant, was in charge of the car when the collision took place.</p> <p>2. Same — Admissions—Impeachment—Distinction.</p> <p>It was also competent to show as an admission that the defendant testified on the previous trial that the driver was in his employ and the evidence was not necessarily impeaching testimony such as would require the laying of a foundation to impeach the party testifying.</p> <p>3. Same — Agency—Directing Verdict.</p> <p>And the evidence conflicting, the question of agency was one of fact and the trial court properly refused to direct a verdict for defendant.</p>

, presiding. Case by Georgia Walker against William Britton for personal injuries. Judgment for plaintiff for an inadequate amount. Plaintiff brings error.

Case by Alida Steketee against Dudley E. Waters, Frank W. Blair, and Paul H. King, receivers of the Pere Marquette Railroad Company, for personal injuries. Judgment for plaintiff. Defendants bring error. In October, 1913, the plaintiff, a married woman 43 years of age residing at Holland, went to Evart, Mich., for the purpose of having an operation performed by one Dr. Hooverter.

Bill by Frank Galinski and others against the city of Detroit and Max Koch, city treasurer, to quiet title to certain land. From a decree dismissing the bill, complainants appeal.

Assumpsit by William White against William McKenzie for money had and received. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Wayne; Van Zile, J.</p> <p>Case by Allen Sage against the Wyandotte Terminal Railroad Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

Annie Hurley presented her claim against the Selden-Breck Construction Company for compensation for injuries to her husband causing his death while in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Case by William A. Robbins, administrator of the estate of William J. Robbins, deceased, against the Magoon & Kimball Company for the negligent killing of plaintiff’s intestate. Judgment for plaintiff. Defendant brings error.

Assumpsit in justice’s court by Richard J. Kincade and another against Mary J. Peck upon a promissory note. There was judgment for plaintiffs and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

James B. Brown presented an award from an arbitration committee against the George A. Fuller Company under Act No. 10, Extra Session 1912, pt. 3, § 13. From a judgment for plaintiff, defendant brings certiorari.

Edith May Perham presented her claim against Albert J. Berschbach and Michael J. Herz, copartners as the American Roofing Company, employers, and the General Accident, Fire & Life Assurance Corporation, Limited, insurers, for compensation for the death of her husband in defendants’ employ. From a judgment for plaintiff, respondents bring certiorari. The facts are not in dispute.

’ Enno J. Pruim presented for probate the last will of Esther T. Wynn, deceased, which was opposed by Grace De Witt, contestant. The will was allowed in probate court and contestant appealed to the circuit court. A judgment for contestant is reviewed by proponent on writ of error.

Bill by Boscoe W. Babcock and another against James Heenan, James McCaren, and another, to enjoin the obstruction of a street or highway. From a decree for complainants defendants appeal.

<p>1. Carriers— Railroads — Evidence — Personal Injuries — Negligence — Boarding Train.</p> <p>Where plaintiff brought an action against defendant railway company for injuries sustained by him in attempting to board the train, after alighting at what he supposed was his destination, the evidence which was held in a previous opinion in the same cause to have presented a question of fact upon the issue of negligence, was, on the second trial, properly left to the jury: the first decision was rightly treated as the law of the case, at the retrial.</p> <p>2. Evidence — Materiality—Trial—Cross-Examination.</p> <p>The question asked of plaintiff, on cross-examination, whether any one depended on him for support, was not material and was properly excluded, since his damages were not in any way affected by his family requirements, or necessities.</p> <p>3. Same — Negligence—Proper Cross-Examination.</p> <p>After testifying that, from examination of plaintiff after the accident, he was of the opinion that he had been drinking, the physician, who was a witness for defendant, was rightly prevented from answering the interrogatory whether he had stated that the plaintiff had told him that he had been drinking, on objection to the form of the question, when counsel was not prevented from showing the extent to which plaintiff’s condition might have been due to the use of intoxicants.</p> <p>i. Damages — Charge — Railroads — Negligence ■— Carrier and Passenger.</p> <p>The trial court did not err in charging the jury, in a suit brought by a passenger who was injured in attempting to board defendant’s train, that it was the duty of the jury to allow plaintiff such sum as would compensate plaintiff for his injuries, limited or defined by a detailed statement of the different elements to be considered, and was not too broad or comprehensive.</p> <p>5. Railroads — Personal Injuries — Instructions.</p> <p>In a personal injury case against a carrier for negligence in failing to allow sufficient time for boarding a train, the court was not in error in charging that the jury might consider the interest of the witnesses of the parties, their bias, prejudices, etc., as it is always proper to consider the interest or bias that any witness might have.</p>

<p>Adjournment — Witness—Absence—Grounds.</p> <p>Defendant’s case was originally set down for trial at a date named, and was thereafter called a day earlier upon less than 24 hours’ notification. After the selection of a jury, which took half a day, defendant’s attorney applied for an adjournment until the following morning to enable one of the chief witnesses for the defendant to be secured, who lived in another State, and who could not be present in time to testify unless the court should grant the adjournment. There was testimony tending to show a vigorous effort to get the witness. Held, that the right was improperly refused and the court should have granted the application.</p>

Bill by Edwin' A. Buck, trustee, against Fred S. Lockwood, Lorenzo Webber, and others, for an accounting and to set aside certain deeds. From an order overruling separate demurrers to the bill, defendants appeal.

Emanuel J. Doyle presented for probate the last will of Ann McIntyre, deceased. From an order admitting the same to probate, Charles Clancy and others appealed to the circuit court. Judgment for proponent on a directed verdict sustaining said will in part and for contestants on question submitted to the jury. Proponent brings error.

George P. Palmer appealed from an order of the probate court on his second annual account as administrator with the will annexed of the estate of Michael O’Leary, deceased. The account was opposed by the Utica State Hospital, a creditor. There was judgment disallowing the-account in part,-and the administrator brings error.

Bill by the Missaukee Farm & Investment Company against Elbert C. Ferris and another for the foreclosure of a mortgage. Defendants filed an answer in the nature of a cross-bill to have said mortgage declared void. From the decree rendered, defendants appeal.

<p>1. Ejectment — Tenants as Parties.</p> <p>In an action of ejectment affecting a parcel of land, part of which was located in the rear or back yards of certain tenant houses, rented and occupied by lessees of defendant, who claimed no interest in the property except as tenants of the defendant, the persons in occupancy were not necessary parties.</p> <p>2. Same — Adverse Possession — Parties—Landlord and Tenant.</p> <p>A defendant in ejectment cannot, for the purpose of defeating the action, rely upon the nonjoinder as defendant of any person occupying the premises with him under a claim of right subordinate to, or inseparable from, his own possession.</p> <p>3. Adverse Possession — Pence—Boundary Lines.</p> <p>Adverse possession of a strip of ground lying adjacent to plaintiff’s lot was not established by testimony showing the construction of a crooked fence, claimed to be nearly on the line, and that disappeared in less than the fifteen-year period.</p> <p>4. Same — Appeal and Error — Instructions.</p> <p>. Where the trial judge instructed the jury, in a somewhat lengthy charge, that the defense of adverse possession had not been sufficiently proved, and did not leave the question to them, but thereafter again discussed the question, while the instruction may have been somewhat misleading, the court could not say the charge was so erroneous as to require a reversal of a judgment for plaintiff.</p>

Case by Irvin Q. Collins, an infant, by his next friend, against the Michigan Central Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.

<p>Error to Wayne; Mandell, J.</p> <p>Assumpsit by Roy W. Brown against Charles D. Pendergast on a promissory note. Judgment for defendant. Plaintiff brings error.</p>

<p>Error to Wayne; Van Zile, J.</p> <p>Case by Hedwig Jozefiak against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Case by Ethel Butler, an infant, by next friend, against Frank F. Watson and another for personal injuries. Judgment for plaintiff. Defendant Watson brings error.

Charles.Kimbrough was convicted of murder in the first degree and sentenced to life imprisonment at hard labor at Marquette.

<p>Error to Van Burén; Des Voignes, J.</p> <p>Assumpsit by Minnie E. Welch against Charles Beeching and Earl L. Burhans to recover a payment made under duress. Judgment for plaintiff. Defendants bring error.</p>

<p>Appeal from Wayne; Hally, J.</p> <p>Bill by Charlotte B. Sherrard and others against Thomas Murphy and Catherine Woods for an injunction. From a decree for complainants, defendant Murphy appeals.</p>

<p>False Imprisonment — Process—Affidavit—Capias ad Respondendum.</p> <p>Where the son of plaintiff, in a negligence case for the killing of two horses, made an affidavit for a capias ad respondendum, under 3 Comp. Laws, § 9999 (re-enacted, Judicature Act, 3 Comp. Laws 1915, § 12416), which was found to be technically defective, but set up facts showing a sufficient cause of action, and where the defendant after-wards brought an action for false imprisonment, the writ was a good defense, the affiant having and showing personal knowledge of the facts, though failing to allege the ownership of the team.</p>

<p>1. Malicious Prosecution — Advice of Prosecuting Attorney— Chattel Mortgage.</p> <p>In an action for malicious prosecution, in which plaintiff declared against the defendant for wrongfully causing plaintiff’s arrest under a criminal charge for fraudulently disposing of hogs mortgaged to plaintiff, the general charge of the court that the advice of counsel, followed in good faith, after a full and fair statement of all the material facts, is a defense to an action for malicious prosecution, though the facts so stated do not justify the advice given, and that if the defendant went to the prosecuting attorney and made a full and fair statement of all the material facts in the case, and the prosecuting attorney advised him that he had a right to make complaint against plaintiff for disposing of the chattel mortgage property under the statute, and defendant, in good faith, followed the advice of counsel, that would be an absolute defense, but it would not be such defense if the statement was not full and fair, the court sufficiently covered a request that in placing the facts before the prosecuting attorney defendant was not required to be the judge of what was material and necessary and was only required to state the case as he fairly understood it, etc.</p> <p>2. Same — Evidence—Instructions to Jury.</p> <p>It was not error to admit evidence competent for one purpose and incompetent for another under instructions as to extent, the manner and limitations under which it could be considered. And, hence, where it was claimed by plaintiff that he had defendant’s permission to sell the hogs in question and apply the proceeds on the chattel mortgage, the testimony was admissible on the question of intent, if not for the purpose of showing a variation in the terms of the mortgage, and the jury were properly instructed to consider it for the one purpose, only.</p> <p>3. Same — Evidence—Directed Verdict.</p> <p>Held, also, that the trial court did not err in submitting to the jury the claim of plaintiff that he had permission to sell the animals when they became fit to market.</p>

Case by Travelers’ Indemnity Company, as assignee of one Gustav W. Zanger, against the Detroit United Railway for damages done to the automobile of plaintiff’s assignor. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by George De Hoop against the Peninsular Life Insurance Company for the recovery of money paid for stock in defendant corporation which was never delivered to plaintiff. Judgment for plaintiff. Defendant brings error.

<p>Error to Washtenaw; Kinne, J.</p> <p>Case by William Tuttle against the Detroit, Jackson & Chicago Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Case by Clarence D. Gaines against the Grand Trunk Railway Company of Canada and others for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

Case by Bronislawa Larskowski, as administratrix of the estate of Joseph Larskowski, deceased, against the Detroit United Railway for the unlawful killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Mandamus by Joseph P. Lavigne against Joseph Barton, judge of the twenty-seventh judicial circuit, acting in Wayne county, to compel respondent to show cause why an order extending the time for settling the bill of exceptions in the case of Edward C. Nagel against Joseph P. Lavigne should not be granted.

Mandamus by the State Board of Tax Commissioners against John Kohler and others, constituting the board of assessors of the city of Detroit, to compel respondents to turn over to relators for inspection and review the assessment rolls of said city.

Smith, J. ' Case by the Michigan Mutual Home Insurance Company against the Pere Marquette Railway Company for the negligent operation of its locomotives and the setting of a fire. Judgment for plaintiff. Defendant brings error.

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

Emil Gumtow and others presented for probate the last will of August Foerster, deceased. Anna Janke and others contested the allowance of such instrument. From an order denying the petition, proponents appealed to the circuit court. Judgment for proponents. Contestant Janke brings error.

, presiding. Bill by Samuel J. Wilson against Charles Sauble to redeem from the sale of land delinquent for taxes. From a decree for complainant, defendant appeals.

Assumpsit by H. M. Paul against William B. Graham, C. W. Shriver, George W. Dunham, and E. C. Humpidge, copartners as Graham & Shriver Company, for commissions on the sale of real estate. Judgment for plaintiff. Defendants bring error.

Assumpsit by D. Lloyd Johnson, trustee in bankruptcy of the St. Louis Chemical Company, against the Gratiot County State Bank for money had and received. ■ Judgment for plaintiff. Defendant brings error.

, presiding. Bill by the John F. Noud Company against Alva Stedman, Ellen R. Avery, mortgagee, and others, to enforce a mechanic’s lien. On petition R. R. Brenner was allowed to intervene, claiming a lien. From the decree rendered, defendant Brenner appeals.

Assumpsit by Edward M. Lieblein against Elias George for goods sold and delivered. Judgment for defendant on a directed verdict. Plaintiff brings error.

Mandamus by the Detroit United Railway against the city of Pontiac to compel respondent to grant permission to lay certain tracks in respondent’s street. On the determination of issues of facts framed by stipulation and submitted to a jury, the writ was denied, and relator brings certiorari.

Bill by the Detroit Cavalry against Frederick T. Ranney, the Whitney Realty Company, Limited, the Collingwood Land Company, and Floyd C. Williams for the specific performance of a land contract and to quiet title. From a decree for complainant, defendants Collingwood Land Company and Williams appeal.

<p>1. Criminal Law — Plea in Abatement — Pleading—Court—Bias or Interest.</p> <p>A party who interposes a dilatory plea in a prosecution for a criminal offense invites the most rigid scrutiny of its sufficiency, under the well established rules of pleading; and, therefore, a plea in abatement to an indictment for embezzlement, which pleaded the fact that the circuit judge had been employed as an attorney by some of the creditors of the corporation, of which respondent was one of the vice presidents, and was pecuniarily interested in the result of the prosecution, was not sufficient, where the evidence showed that the relation between the judge and the creditors had terminated before he called the grand jury, since the indictment does not place the respondent in jeopardy, but is preliminary to the hearing: also, under the statutes of Michigan, the accused is limited to the one ground of objection, viz., that some one summoned to serve is prosecutor or complainant against him.</p> <p>2. Same — Disqualification of Judge.</p> <p>And where the circuit judge, who was later called to hear the case, was incapacitated by a similar disqualification, but the presiding judge overruled the motion for a change of venue, calling in another circuit judge to hear the ease on the merits, the accused waived any right to object to having the judge act as substitute in arguing the plea without objection before him.</p> <p>S. Same — Bill of Particulars.</p> <p>Where a bill of particulars was filed in a criminal proceeding covering the embezzlement of $12,000 of so-called salary, and also covering a further embezzlement of $25,000 for another year, but the trial proceeded throughout in relation to the year 1913, when he received the larger amount of salary, a request to instruct the jury that no claim was made under the bill of particulars for the $25,000 salary, and the evidence about the same could only be considered as bearing on his intent in receiving the $12,000, was correctly refused, for the reason that it was not presented until after the arguments were completed and the case had been tried and argued on a contrary theory.</p> <p>4. Same — Evidence—Privilege—Bankruptcy.</p> <p>While testimony in a criminal prosecution, showing the sworn statements of respondent upon examination in bankruptcy proceedings of the corporation of which he was an officer, should have been excluded because it was privileged, it could not be said to have prejudiced the accused who afterwards went on the stand and gave testimony relative to the same facts.</p> <p>5. Same — Salary—Definition.</p> <p>A salary is defined as a periodical allowance made as compensation to a person for his official or professional services or for his regular work.</p> <p>6. Same — Conspiracy—Embezzlement—Corporations—Officers.</p> <p>Under a charge that respondent and other officers of a corporation had conspired together to wrongfully and secretly convert to their own use funds of the corporation, in form of excessive salaries, ttye evidence showing the taking of the money, and that it was authorized by the conspiring officials, and they, with accused, were in control of the corporate funds, presented an issue which the court rightly submitted to the jury.</p> <p>7. Same — Instructions to Jury — Fraudulent Intent.</p> <p>And upon proofs that respondent received a large and unauthorized salary, which was charged on the books to a fictitious account, the court was right in charging the jury that the object of introducing evidence about the fictitious account was to show that the true account of the money which respondent received was secreted, but the evidence could not be considered unless the jury also found that the money was so charged with the knowledge and consent of respondent, or with the knowledge and consent of others with whom he was knowingly co-operating in committing the offense.</p> <p>8. Same — Conspiracy—Knowledge.</p> <p>Where two or more conspire together to commit an actionable wrong everything said, done, or written by any one of them in the execution or furtherance of the common purpose is deemed to be said, done, or written by everyone, and is a relevant fact as against each.</p> <p>9. Same — Insolvency op Corporation — Evidence—Intent.</p> <p>But evidence as to insolvency of the corporation stood upon a different footing: though respondent joined in a report of its annual condition to the State, showing serious impairment of the capital, the report was not conclusive, when he denied knowing its contents and claimed he had not read it and did not know of the alleged insolvent condition.</p> <p>10. Same — Conspiracy—Knowledge—Instructions.</p> <p>And where the court charged that if the jury found the corporation was insolvent when his salary was increased, that was not to be considered as indicating bad faith unless he knew of the condition, or unless others with whom he was acting in concert knew of the insolvency, the error was prejudicial and reversible, and it was improper to permit the jury to consider the knowledge of the other conspirators as proof of the motive and intent of the accused.</p>

Case by Minnie Horowitz against Euphemia Blay, Isaac L. Polozker, Desire B. De Coster, and Norval Wardrop for injuries to a stock of merchandise. Judgment for defendants on a directed verdict. Plaintiff brings error. This is an action brought to recover damages for injuries to a stock of shoes caused by the falling of the wall of the- building in which they were stored. This building was a two-story brick standing on the south side of Gratiot avenue, in the city of Detroit.

<p>1. Constitutional Law — Teachers’ Pension — Statutes — Class Legislation — Schools—Contracts.</p> <p>The provisions of Act No. 174, Pub. Acts 1915, 2 Comp. Laws 1915, §§ 5767-5780, providing for the establishment of a teachers’ pension fund, and providing for contributions from the compensation of those who are actively engaged in their employment to maintain it, are not class legislation, and are not in violation of the Constitution, because the classification of teachers as one employment is reasonable and justifiable; whether such contract will encourage or promote education is a matter for the legislature to determine; any legislation that affects the qualifications, period of service, or reward of teachers' acts upon this class.</p> <p>2. Same — Due Process oe Law — Statutes.</p> <p>While the statute affects contributions from teachers, the salaries to be paid constitute a net amount, and the act takes nothing from any one, hence, does not trespass upon the due process prohibition of the Constitutions.</p> <p>3. Same — Inequality—Taxation.</p> <p>The objection that it is a fund that belongs under the Constitution to the school districts and cannot be taken by the State for a pension fund is untenable as a ground of the invalidity; and whether or not the act effects inequality in contributions by different districts, it is not a reason for holding the law void, as the rule which requires uniformity in taxation does not apply to such districts.</p> <p>4. Same — Private Purpose.</p> <p>The general effect and purpose of the act is not to authorize the expenditure of public money for a private purpose, nor does it award extra compensation to a public agent as forbidden by section 3, Art. 16, of the Constitution. Ostrander, J., dissenting.</p> <p>5. Same- — Schools—Teachers’ Pension — General Act — Special Legislation.</p> <p>Act No. 174, Pub. Acts 1915, 2 Comp. Laws 1915, § 5767 et seq., creating pensions for teachers, does not violate the section of the Constitution prohibiting extra eompensation to public officials and servants, tbe statute extending similar inducements to teachers already employed and to those who enter public service subject to the pension provisions. Nor does section 14 violate the Constitution, Art. 5, § 30, in that the act does not apply to Detroit until the local retirement fund is discontinued: the general purpose and phraseology of the legislation brings it within the legislative authority. Ostrander, J., dissenting.</p>

Bill by the Michigan State Telephone Company against the Michigan Railroad Commission to vacate' an order requiring certain physical connections with the Citizens’ Telephone Company. From a decree for defendant, complainant appeals.

<p>Street Railways — Negligence—Contributory Negligence — Directed Verdict — Signals.</p> <p>Where plaintiff started to cross a wye of defendant’s tracks to reach a car which he purposed to board, and was obliged to pass in the rear of a standing car that was about to back up to turn about on the intersection, and no warning or signal was sounded to indicate the intention to back, as required by an ordinance of the municipality, known to the plaintiff, and there was no conductor on the rear platform, as also required by ordinance, the trial court erred in directing a verdict for defendant on the ground that plaintiff did not look after he left the curb, in taking five or six steps and passing behind the standing car. He was entitled to assume that the servants of defendant would conform to the provisions of the ordinance and the standing car would not back up without a conductor at the rear to sound a warning or take necessary precautions.</p>

, presiding. Assumpsit by the city of Bay City against the Lumbermen’s State Bank for money had and received. Judgment for plaintiff on a directed verdict. Defendant brings error.

Assumpsit in justice’s court by Willis W. Harmon against Harrison M. Parker for work and labor performed. There was judgment for plaintiff and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Summary proceedings by Alexander Chylowski against Louis Steinberg for the possession of leased premises before a circuit court commissioner of Wayne county. Defendant removed the cause by appeal to the circuit court. Judgment for plaintiff. Defendant brings error.

Assumpsit by G. Leo Weadoek -against Elizabeth Champe for breach of contract for the sale of real estate. Judgment for plaintiff; Defendant brings error.

Bill by the Long Point Development Association against John S. McIntosh and Paul D. Wampler, co-partners as McIntosh & Wampler, for an injunction against an action at law and for other relief. Defendants filed a motion to dismiss the bill. From an order denying the motion, defendants appeal.

Bill by George Weaver and another against Lydia M. Michello and another for the cancellation of certain deeds. From a decree for defendants, all parties appeal. On February 7, 1911, Morris L. Michello was living on a piece of real estate in Bay county which was his homestead, and on that day Lydia Michello, his wife, filed a bill for divorce against him which was settled amicably two days later.

<p>Error to Wayne; Des Voignes, J., presiding.</p> <p>Case by Myrtle Ida Norris against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Case by Stanley R. Dickinson against Elizabeth W. Hanley and others for broker’s commissions and for fraudulent misrepresentations. Judgment for defendants on a directed verdict. Plaintiff brings error.

<p>1. Perjury — Warrant—Grounds—Justices of the Peace — Preliminary Examination.</p> <p>Respondent was charged with perjury for giving false testimony relative to the purchase of intoxicating liquors from a colored person who was accused of unlawfully furnishing intoxicating liquors. Respondent was given two marked one dollar hills and entered the pool room of the accused and returned with two pints of whisky, which he stated that he bought of the accused. He made a sworn statement to that effect when the warrant was issued. Later, he gave evidence on the examination that he did not purchase the whisky of accused and did not pay him the marked bills which he had received. The people produced evidence that tended to show the contradictory statements of respondent on the two occasions and that he had informed certain witnesses of the purchase of the whisky. The justice of the peace who issued the warrant testified to the statements made by respondent at the time of issuing the warrant. They were not reduced to writing. Held, that the object of the examination before the justice, under 3 Comp. Laws 1915, § 15666, is to determine the sufficiency of the ground for a warrant and the evidence need not be written down, also that there was evidence which required the submission of the case to the jury.</p> <p>2. Same — Criminal Law — Trial.</p> <p>Contradictory statements, whether made under oath or not, do not authorize a conviction for perjury, although the additional testimony of another witness to the falsity of the statement is not required if the truth may be inferred from the combined facts proven. The prosecution, however, must prove which of the two statements is false and by other evidence than the contradictory statements.</p> <p>3. Same — Intent—Trial-Charge—Materiality.</p> <p>Held, that the jury should have been instructed on the point whether or not perjury was committed at the time laid in the information, i. e., the evidence given by respondent when he was called as a witness or whether respon.dent swore untruthfully on the prior occasion, and that wilful false swearing before the magistrate upon a material matter before the complaint had been made would constitute perjury.</p> <p>4. Same — Evidence—Juey Question.</p> <p>Testimony of the respondent that he was frightened or cajoled by the officers and by the justice of the peace before whom complaint was made into swearing to the same, and by the use of third degree methods, and, in effect, that his testimony at the subsequent examination was true, presented a proper issue for the jury.</p> <p>5. Same — Requests to Charge — Reasonable Doubt.</p> <p>The court, in giving his instructions to the jury, should have granted respondent’s request to charge that, in considering the guilt or innocence of the respondent, before they could convict they must find that the people have proved beyond a reasonable doubt in their minds that the matters sworn to were false in fact and that they must find the respondent did go to the place of business in question and purchase the whisky as charged; further, that they could not find the respondent guilty of testifying falsely upon the testimony of one witness whose testimony is given to prove the falsity of the statement; that in addition to the statement of the witness strong corroborating circumstances of such a character as would clearly turn the scale and overcome the oath of the party accused must be shown.</p> <p>6. Same — Tbial—Chaege.</p> <p>If the preliminary testimony made it clear that the statement claimed to have been made was voluntary or involuntary it was the duty of the trial court to admit or reject it; if the matter was left in doubt, it was the duty of the court to admit it and leave the question to the jury under proper instructions to determine whether it was voluntarily made; the jury should have been explicitly advised on this issue.</p> <p>7. Same — Presumption oe ■ Innocence — Instructions.</p> <p>The court did not substantially cover the subject of the presumption to be considered, by telling them that the burden rested on the prosecution and the accused came into court clothed with the presumption of innocence, and he stands innocent in their minds until the people, through the prosecuting attorney, had convinced them of his guilt beyond a reasonable doubt; that a reasonable doubt meant a doubt which a reasonable man might have, not a captious doubt; that the matter did not require mathematical exactness, but the people must prove beyond a reasonable doubt that respondent was guilty, etc.</p>

Bill by Harvey Morrison against the Queen City Electric Light & Power Company for an injunction restraining defendant from flooding complainant’s land. From a decree awarding damages, complainant appeals.

Fredericka Schroetke presented her claim against the Jackson-Church Company for compensation for the death of her husband in defendant’s employ. From an order denying compensation, petitioner brings certiorari.

Case by Edwin Boner against the Eastern Michigan Power Company, the Au Sable Electric Company, and the Grand Rapids-Muskegon Power Company for personal injuries. Judgment for plaintiff against the two first-named defendants who bring error.

Separate bills by George A. Schmidt against Jacob Steinbach and William P. Schenk to remove clouds upon the title to land. From a decree dismissing the bills, complainant appeals.

Assumpsit in justice’s court by the Patrons’ Mutual Fire Insurance Company of Michigan, Limited, against Mrs. George Butler for assessments due on' a policy of insurance. From a default judgment for plaintiff, defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

, presiding. Bill by Julia Cole against Charles W. Cole for separate maintenance and alimony. From a decree for complainant, defendant appeals.

Bill by Francis C. Osborn against the Detroit Kraut Company, Elbridge G. Newhall, and Cornelia Lyon to set aside certain mortgages given by defendant corporation, to establish a lien in the nature of a mortgage and to foreclose the same. Froni the decree rendered, complainant and defendant Lyon appeal.

, presiding. Case by Antonio Stornelli against the Duluth, South Shore & Atlantic Railway Company for personal injuries. Judgment for defendant, non obstante veredicto. Plaintiff brings error.

Trespass quare clausum fregit by Robert Connor and another against Hector McRae, Donald McRae, and Paul Francis for treble damages under 3 Comp. Laws, § 11204 (3 Comp. Laws 1915, § 14632). Judgment for plaintiffs for an insufficient amount. Plaintiffs bring error.

Assumpsit by Henry E. Myers and Edwin F. Holmes, administrators of the estate of John L. Woods, deceased, against the Muskegon Improvement Company, George L. Erwin and others upon a promissory note. Judgment for defendants. Plaintiffs bring error.