Volume 196 — Michigan Reports

<p>1. Arrest — Illegal Arrest — Ordinances—Disorderly Conduct.</p> <p>It is not disorderly conduct in violation of an ordinance warranting an arrest and imprisonment without a warrant, for a- woman who passes a man on a public street to cough and say to him, “Hello there, kid.”</p> <p>2. Same — Other Offenses.</p> <p>An arrest and imprisonment without a warrant is not warranted because the plaintiff, in an action to recover damages for illegal arrest and imprisonment without a warrant, is a bad girl, with a jail record, and admitted violations of the same ordinance on other occasions.</p> <p>3. Same — Disorderly Conduct — Breach of Ordinance in Presence of Officer.</p> <p>Arrest and imprisonment without a warrant are authorized only for offenses committed in the presence of the arresting officer and at the time.1</p> <p>4. False Imprisonment — Evidence—Plea of Guilty — Admissibility.</p> <p>In an action against a police officer to recover damages for illegal arrest and imprisonment without a warrant, evidence of a plea of guilty to the offense charged in a warrant subsequently issued therefor and served, is inadmissible on the question of waiver of liability for such arrest.</p> <p>5. Same — Trial—Evidence—Practice.</p> <p>In such action, where a record of plaintiff’s conviction and sentence on a warrant subsequently issued for the same offense was excluded, held, that the better practice would have been to admit all documentary evidence relied on in justification and to then rule that no justification had been shown.</p> <p>6. Same — Trial—Evidence—Harmless Error.</p> <p>The exclusion of the record of plaintiff’s conviction and sentence on a warrant issued for the offense of being a disorderly person, is harmless error where it would have been immaterial if admitted.</p> <p>7. Pleading — Amendment—Discretion of Court.</p> <p>Where, after trial was well under way, defendant asked leave to amend his plea and notice, which was given upon condition that he pay plaintiff’s taxable costs and the case be passed to the succeeding term, held, that such condition was not unusual or unreasonable, and was no abuse of the court’s discretion.</p> <p>8. Trial — Appeal and Error — False Imprisonment — Conduct of Court.</p> <p>It was not prejudicial error for the court to interrupt argument of counsel, in an action against a police officer for damages for illegal arrest and imprisonment without a warrant, where the only question was as to the amount of damages and the verdict was for only $33j</p>

<p>1. Brokers — Commissions—Sale—When Effected.</p> <p>The word “sale” as used in a contract to pay a broker’s commission upon the sale of property is applicable to a written contract for tbe purchase of the property binding both vendor and purchaser, although a formal deed has not been executed. ,</p> <p>2. Same — Commissions—Defective Title — Agent’s Knowledge.</p> <p>There can • be no recovery by a real estate broker of a commission contracted for upon a sale where the sale is not consummated because of defects in the employer’s title known or which should have been known to such . broker at the time he contracted for a commission, unless it was t^e intention of the parties that the title should be subsequently perfected by the employer in order to be able to perform.1</p> <p>3. Appeal and Error — Question for Jury — Conflicting Testimony.</p> <p>Where defendant testified and plaintiff denied, in an action to recover an agreed commission for effecting a sale of defendant’s premises, that at the time defendant signed the agreement for such sale he stated to plaintiff that if it required his wife’s signature to the deed he could not give it, held, that a question of fact was presented for the jury, and the court erred in directing a verdict for the plaintiff.</p>

Assumpsit by the board of education of the city of Grand Rapids against Frank A. Bacon for tuition. Judgment for defendant. Plaintiff brings error.

Bill by Lucinda Howard, by her guardian, Jefferson E. Eddy, against Dewey S. Howard and Eunice E. Howard, minors, to set aside a deed. From a decree for plaintiff, defendants appeal.

Clair; Tappan, J. Assumpsit by the Ladies of the Modern Maccabees against the Illinois Surety Company upon an indemnity bond. Judgment for plaintiff., Defendant brings error. This case was submitted on briefs at the June, 1916, term and was reassigned at the April, 1917, term. Plaintiff is a fraternal beneficiary association, incorporated under the laws of this State.

Exceptions before judgment from the superior court of Grand Rapids; Dunham, J. J. Alton Watson was convicted of unlawfully engaging in the practice of medicine.

Clair; Law, J. Joseph Walsh and Nan Walsh presented for probate the last will and testament of Robert Walsh, deceased. From an order admitting the will to probate Emma Keith and others appealed to the circuit court. Judgment for proponents. Contestants bring error.

Bill by Gustave A. Schenk against the city of Ann Arbor for an injunction restraining defendant from taking water from property adjoining plaintiff’s lands. From the decree entered, both parties appeal.

, presiding. Assumpsit by George W. Radford against Josephine Gaukler, survivor of herself and Arthur H. Gaukler, deceased, upon two promissory notes. Judgment for defendant. Plaintiff brings error.

<p>Appeal and Error — Review—Denial of New Trial — Misconduct of Counsel — Abuse of Discretion of Trial Court.</p> <p>The refusal of the trial court to grant a new trial on the ground of prejudicial conduct of counsel peculiarly involves an exercise of judgment upon facts by that court in a discretionary matter, to disturb which it should affirmatively appear to the appellate court from the record that there was a palpable abuse of discretion beyond excuse or reasonable justification.</p>

<p>Error to Alger; Fead, 3.</p> <p>Case by Joseph Sims against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Petition in probate court by William Kellogg for the appointment of a guardian of the person and estate of Lafayette Kellogg, alleged incompetent. From an order granting the prayer of the petition, said defendant appealed to the circuit court. Judgment for petitioner. Defendant brings error.

, presiding. Assumpsit in justice’s court by E. R. Brackett & Company against Louis Schiappacasse and others, doing business as L. Schiappacasse & Company, for a consignment of fruit. From a judgment for plaintiff, defendants appealed to the circuit court. Judgment for defendants on a directed verdict. Plaintiff brings error.

Bill by the Marquette Lumber Company against A. Le Grand Albee and others to enforce a mechanic’s lien. From a decree for plaintiff, defendants appeal.

Appeal fr.om Alpena; Emerick, J. Bill by Henry K. Gustin against Agnes McKay, administratrix of the estate of James D. McKay, deceased, and guardian of the person and estate of Léonard J. McKay, and another, for the correction of a deed and other relief. From a decree for plaintiff, defendants appeal.

Assumpsit by the Booth & Boyd Lumber Company against the Caledonian Insurance Company of Scotland upon a policy of insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.

<p>Municipal Corporations — Ordinances — Violations — Health — Sentences — Female Prisoner — False Imprisonment.</p> <p>In an action for false imprisonment of plaintiff, a woman, by defendants, a justice of the peace who sentenced her and the sheriff who executed the sentence, for violation of a municipal health ordinance prescribing a fine or imprisonment for a violation thereof, promulgated under 1 Comp. Laws, § 3131 (2 How. Stat. [2d Ed.] § 5653, 1 Comp. Laws 1915, § 3045), authorizing the municipality to prescribe penalties for violation of any law, rule or regulation made by its board of health or any officer thereof and 2 Comp. Laws §§ 4412, 4459 (2 How. Stat. [2d Ed.] §§ 3109, 3155, 1 Comp. Laws 1915, §§ 5043, 5090), declaring any such violation to be a misdemeanor, held, that such proceeding against plaintiff was not civil process within 3 Comp. Laws, § 10342 (5 How. Stat. [2d Ed.] § 13043, 3 Comp. Laws 1915, § 12445), exempting a female from imprisonment on any process in any civil action.</p>

Bill of interpleader by the Switchmen’s Union of North America against Lena Gillerman and Florence Gillerman to determine the right to the proceeds of a policy of insurance. From a decree for defendant Lena Gillerman, defendant Florence Gillerman appeals.

Bill of interpleader by the Germania Life Insurance Company against Frank M. Wirtz, executor of the last will of Johannes Schild, deceased, Clark Hawley, special administrator of the estate of Henry Schild, deceased, Bertha Wagner, Lulu Fischer, Sophia Grafe and Herbert Schild to determine the right to the proceeds of a policy of insurance. From a decree for defendant Wirtz, the other defendants appeal.

Bill by Frank Laberteaux, administrator de bonis non of the estate of Walter H. Bidwell, deceased, against O. Harry Gale, administrator with the will annexed of the estate of Purleyette K. Bidwell, deceased, Ella C. Hughes, Mae B. Frink, Clara M. B. Hornschurch, and others for the construction of the will of said Walter H. Bidwell and for an accounting. From a decree for plaintiff, defendants Hughes, Frink and Hornschurch appeal.

Bill by William W. Butterfield against Walter J. Reynolds to enforce contribution from defendant as a coindorser with plaintiff of certain promissory notes. From a decree for defendant, plaintiff appeals.

<p>Error to Alpena; Emerick, J.</p> <p>Assumpsit by John M. Clark against the Onaway-Alpena Telephone Company for services rendered. Judgment for plaintiff. Defendant brings error.</p>

Bill by the village of Grosse Pointe Shores and the township of Grosse Pointe against Clara Holmes and Clara Walter to have a certain road decreed to be a public highway. Upon the death of defendant Walter, before the trial, William Walter and others, heirs of said deceased, were substituted as parties defendant. From a decree for defendants, plaintiffs appeal.

Assumpsit by the Cleveland-Cliffs Iron Company against the township of Republic for taxes paid under protest. Judgment for defendant non obstante veredicto. Plaintiff brings error. Held: and asked for a modification of the valuation of the property theretofore fixed by the board. The board' declined to take action reducing the valuation ; at least it did not reduce it, and local assessing officers finally valued the mine and stock pile at $1,115,-759.

Garnishment proceedings by John Nichol, receiver of the Citizens’ Mutual Fire Insurance Company, against Stiles Brothers Company as garnishee of Wilbur Nevers, principal defendant. Judgment for plaintiff and said garnishee brings error.

Annie Reh, administratrix of the estate of Richard M. Reh, deceased, filed her final account in the probate court. From an order allowing said account, Toni Ertrachter appealed to the circuit court, where a trial was had before the court without a jury. The order of the probate court was affirmed. Contestant brings error.

Bill by William J. Maginn against Frances A. Cashin to have a deed declared a mortgage and plaintiff permitted to redeem. From a decree for plaintiff, defendant appeals.

Voignes, J. Assumpsit by Maggie L. Bishop, doing business as the Bishop1 Jewelry Company, against Thomas F. Dodge on a promissory note. Judgment for plaintiff on a directed verdict. Defendant brings error.

Bill by Lillian Sweeney against Láveme G. Sweeney for divorce: On petition of defendant for a modification of the decree respecting alimony and the custody of the children. From an order dismissing the petition, defendant appeals.

<p>1. Witnesses — Confidential Communications — Physicians — Waiver — Statutes—Public Policy.</p> <p>An anticipatory waiver by an insured in an application for a life insurance policy of the privilege prohibiting the disclosure by attending physicians’ of information obtained in a professional capacity, which is to become operative upon the death of the patient, is invalid under Act No. 234, Pub. Acts 1909 (5 How. Stat. [2d Ed.] § 12826; 3 Comp. Laws 1915, § 12550), as being against public policy.</p> <p>2. Abortion — Definition—Statute—“Miscarriage.”</p> <p>It is not a conclusive defense to a life insurance policy making such, policy void for violation of the criminal laws of the State, that insured procured an abortion upon herself since the word is primarily equivalent to miscarriage, and the causing or procuring the same, under 3 Comp. Laws, §§ 11502, 11503 (5 How. Stat. [2d Ed.] §§ 14555, 14556; 3 Comp. Laws 1915, §§ 15224, 15225), may, under certain circumstances, be innocent, and even necessary to preserve life.</p> <p>3. Evidence — Rebuttal.</p> <p>The term “rebuttal evidence,” as commonly understood and applied in practice, means evidence introduced in denial of some affirmative matter of defense which the answering party is endeavoring to prove.</p> <p>4. Appeal and Error — Discretion oe Trial Court — Reception oe Evidence.</p> <p>Whether evidence may be given on rebuttal, or after the defense has rested, even though it should properly have been offered in chief, is generally a matter within the discretion of the trial court, which will not be interfered with by the appellate court, unless a clear abuse of discretion is shown.</p> <p>5. Trial — Reception oe Evidence — Rebuttal.</p> <p>In an action on a benefit certificate of a fraternal insurance company, in which the defense was procurance of a criminal abortion by insured upon herself in violation of terms of the policy making it void for violation of the criminal laws of the State, where a witness for defendant, a nurse, testified that she heard deceased, on the day before her death, tell the attending physician, in response to his questioning, that an abortion had been performed on her the day before she was brought to the hospital, and that deceased told witness that the reason the act was done was that she could not afford to raise any more children, and the witness stated on cross-examination that upon the day deceased was brought to the hospital she stated that she had suffered a miscarriage, brought on by working, held, that evidence of facts tending to show the improbability of the statement implying criminality and the probability of the other was proper in rebuttal.</p> <p>6. Evidence — Question for Jury.</p> <p>In an action on a benefit certificate against a fraternal insurance company, held, that evidence that a hospital nurse, a witness for defendant, heard insured on the day before her death tell the attending physician, in response to his questioning, that an abortion had been performed on her the day before she was brought to the hospital, and that deceased told witness that the reason the act was done was that she could not afford to raise any more children, and that upon the day deceased was brought to the hospital she stated that she suffered a miscarriage, brought on by working in the garden, raised a question for the jury as to whether a criminal abortion caused her death or she suffered a miscarriage from unintentional overexertion.</p> <p>7. Juey — Question foe Juey — Credibility of Witnesses.</p> <p>The jury are the judges of questioned facts and of the credibility of the witnesses.</p> <p>8. Evidence — Criminal Law.</p> <p>Evidence held, insufficient to establish the defense, in an action on a death benefit certificate, that insured procured a criminal abortion upon herself.</p>

Case by George R. Griggs against the Saginaw & Flint Railway Company for personal injuries. Judgment for plaintiff for an insufficient amount, and he brings error.

Case by Michalina Grochuiski, administratrix of the estate of Stanislaus Grochuiski, deceased, against Julius Porath, for the negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Assumpsit by Rosa Miller against Daniel J. Young for money received upon the sale of certain sheep belonging to plaintiff. Judgment for plaintiff. Defendant brings error.

, presiding. Case by Helen Kovacevic against William Reid and Anthony Rzadkowoloski for personal injuries. A verdict was directed in favor of defendant Rzadkowoloski. Judgment for plaintiff against defendant Reid, who brings error.

Bill by Bertha Allen against Charles E. Allen for a divorce. Defendant filed an answer and cross-bill praying therein for a divorce. From a decree for defendant, plaintiff appeals.

Case by William Miller against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error. Plaintiff brought his action against defendant railroad company to recover damages for injuries alleged to have been received by him through the negligence of his employer.

Bill by John C. Swanteck and another against the city of Detroit and others to restrain the vacation of a public alley. From a decree for defendants, plaintiffs appeal. Outlot No. 73, Patterson subdivision of the Mc-Dougall farm, occupies an entire block bounded on the north by Frederick street and on the south by Farnsworth street, on the west by McDougall avenue and on the east by Elmwood avenue. It is approximately 257 feet north and south by 444 feet east and west.

Assumpsit in justice’s court by Charles P. Smith against Burton G. Starke for broker’s commissions. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>1. Contracts — Champertous Agreements — Vat.tmw — Public Policy.</p> <p>A paper, signed by a wife in ignorance of its contents, by which she agrees to pay to a certain person part of all moneys, lands, or other property that may be received by her in settlement of a suit to be instituted by her against her husband, and to make no settlement less than a stated sum, and such person agreeing therein to furnish counsel to represent the wife in such suit, is void as being against public policy.</p> <p>2. Divorce — Champertous Agreements — Evidence—Good Faith.</p> <p>Evidence held, sufficient to show that plaintiff instituted the suit against her husband for divorce in good faith, although she was in ignorance of the contents of the agreement, so as not to warrant the dismissal of the bill. Kuhn, C. J., and Ostrander and Bird, JJ., dissenting.</p> <p>3. Same — Alimony—Payment—Discretion oe Court.</p> <p>Monthly installments for life, instead of permanent alimony in a lump sum, should be given a wife where she is a woman of middle life, unable to go out to service, and subject to imposition by others.</p>

, presiding. Case by Casimir Bayer against Stanislaus Grocholski and another for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.

Bill by Edward C. Chapin against the Citizens’ Telephone Company and others to set aside the transfer of certain corporate stock, and for an accounting. From an order overruling a demurrer, defendants appeal.

Case by Manly Hyatt against the Leonard Storage Company and the Detroit United Railway for personal injuries. Judgment for plaintiff against defendant storage company, which brings error.

Harold Winney was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.

<p>Error to Cass; Des Voignes, J.</p> <p>Assumpsit by William F. McKnight against Elick Lowitz for professional services. Judgment for plaintiff, and both parties bring error.</p>

<p>1. Appeal and Error — Trial—Examination op Jurors on Voir Dike — Curing Error.</p> <p>Where, in an action to recover for personal injuries received in an automobile collision, a juror was asked on his voir dire as to his agency for an automobile insurance company, and an objection thereto was made and sustained, and no further reference to the matter was made by court or counsel, and counsel expressed their satisfaction when two jurors were subsequently passed for cause, held, that there was.no reversible error.</p> <p>2. Same.</p> <p>Much latitude is allowed in the examination of a juror on his voir dire.</p> <p>3. Witnesses — Cross-Examination— Conclusions — Automobiles —Personal Injuries.</p> <p>In an action to recover for personal injuries sustained in a collision between automobiles, the question put to defendant upon cross-examination, “Your car came around there with such force that the rear wheel hit the Fountain street curb, didn’t it?” was properly admitted, over objection that it called for a conclusion.</p> <p>4. Same — Cross-Examination—Credibility—Prejudice.</p> <p>Where a witness was asked on cross-examination as to statements claimed to have been made by him to plaintiff, in whose behalf he was being cross-examined, as tending to show the witness’ prejudice or bias against one of the attorneys for plaintiff, sufficient foundation was laid for testimony by plaintiff in rebuttal as affecting the credibility of the witness.</p> <p>5. Same.</p> <p>Questions on cross-examination of a witness for defendant tending to show hostility to and prejudice towards one of plaintiff’s attorneys, are properly admitted for such purpose.</p> <p>6. Automobiles — Personal Injuries — Damages—Excessive Verdict.</p> <p>In an action to recover for personal injuries sustained in an automobile collision, held, that a judgment for $300, on remittitur, was not excessive, where plaintiff was 75 years old, had two ribs broken, had been kept from work for some time, and earned about $12 a week when at work.1</p>

<p>1. Landlord and Tenant — Deeds — Life Estates — Action for Rent — Evidence—Admissibility.</p> <p>In an action by tbe administrator of tbe estate of a grantor in a deed, which reserved a life estate in the premises in the grantor, to recover rent from the grantor’s tenant, where the rent had been paid to a date subsequent to the grantor’s death, the deed was admissible to show the extinguishment of the grantor’s title.</p> <p>2. Same — Life Estates — Lease—Termination.</p> <p>The death of a life tenant terminates a lease of the premises by him, and the lessee becomes a tenant by sufferance of the reversioner.1</p> <p>3. Same — Life Estates — Termination—Notice.</p> <p>The lessee of a tenant for life is charged with notice of the extent of his landlord’s title, especially where such title appears of record.</p> <p>4. Dismissal and Nonsuit — Notice—Sufficiency—Pleading.</p> <p>The question of the insufficiency of a notice filed under the general issue cannot be raised by motion, under the judicature act (Act No. 314, chap. 14, § 4 Pub. Acts 1915, 3 Comp. Laws 1915, § 12456), as under the former practice it could not be raised by plea or demurrer.</p>

James H. MacDonald presented his claim for services against the estate of Vilna I. MacDonald, deceased. The claim was disallowed by the cómmission.ers, and claimant appealed to the circuit court. From an order remitting the cause to the probate court for further proceedings, Flora B. Holt, executrix of the estate of said deceased, brings certiorari.

John Oniji presented his claim for compensation against the Studebaker Corporation for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Charles S. Hampton presented a claim against the estate of John W. Van Nest, deceased, for the amount of several promissory notes. The claim was disallowed in the probate court, and claimant appealed to the circuit court. Judgment for defendant. Claimant brings error.

Case-made from Jackson; Parkinson, J. Case by Estella Culley against Forrest C. Badgley for the conversion of certain moneys. From a judgment for plaintiff for less than the amount claimed, she appeals.

, presiding. Bill by Francis. J. Miller against John Gillespie, commissioner of the Metropolitan police force of Detroit, and others, for the surrender for cancellation of certain records in said police department. From a decree dismissing the bill, plaintiff appeals.

<p>Error to Kent; Brown, J.</p> <p>Assumpsit by the Couple-Gear Freight Wheel Company against the Lake Shore & Michigan Southern Railway Company for breach of a carrying contract. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit in justice’s court by John P. Paul against Annie E. De Carrie for rent. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

, presiding. Ejectment by King Rasor and another against Cassius M. Mott. Judgment for defendant. Plaintiffs bring error. The cause was tried by the court, findings of fact and conclusions of law were filed, and plaintiffs’ request for certain findings of law was filed and was considered by the court. Judgment for defendant for costs was entered.

Nellie Smith and Mabel Garson were convicted of stealing and sentenced to imprisonment from six to. nine months in the Detroit house of correction.

, presiding. Bill by Alexander M. Canedy against Kenney C. Turner and another to set aside a deed. From a decree dismissing the bill, plaintiff appeals.

<p>Divorce — Extreme Cruelty — Evidence—Sueetciency.</p> <p>Evidence held, sufficient to sustain a decree in plaintiff's favor, on a bill by a husband for a divorce on the ground of extreme cruelty.</p>

Bill by George McVicker and another against Frank G. Kneeland and others to remove a cloud upon the title to land. From a decree for plaintiffs, defendants appeal.

<p>Exceptions before judgment from Iron; Flannigan, J.</p> <p>Dolfo Calliari was convicted of violating the local option law.</p>

, presiding. Assumpsit by Stanley M. Rennie and others, co-partners as the Rennie Coal & Supply Company, against Julius Stelter and another, doing business as J. Stelter & Son, for goods sold and delivered. Judgment for defendants. Plaintiffs bring error.

’Error to Mackinac; Shepherd, J. Case by Matilda Holtquist against Daniel O’Connell and another under the civil damage act for the unlawful sale of intoxicating liquors to plaintiff’s husband. Judgment for plaintiff. Defendants bring error.

, presiding. Case in justice’s court by Lee & Cady, a corporation, against Frederick J. Farr for refusal to deliver certain property claimed as exempt under a chattel mortgage. There was judgment for plaintiff and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Andrew Adomites presented his claim for compensation against the Royal Furniture Company for the partial loss of a thumb while in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Case by Elmer Lundstrom against the township of Ellsworth for injuries to plaintiff’s threshing outfit caused by a defective bridge. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Appeal from Oceana; Sullivan, J.</p> <p>Bill by Ida M. Wall against Clayton Wall for a divorce. From a decree for plaintiff, defendant appeals.</p>

Mary Vogeley presented her claim against the Detroit Lumber Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Exceptions before judgment from Kalamazoo; Weimer, J. Truxton Talbot was convicted of libel. On appeal from the municipal justice’s court of the city of Kalamazoo to the circuit court for the county of Kalamazoo, defendant was convicted of criminal libel. The case is here upon exceptions before sentence.

, presiding. Garnishment proceedings in justice’s court by Mary Anderson against Margaret Marsh as garnishee of Charles W. L. Wartenburg. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error. Plaintiff, a resident of Detroit, claims to have negotiated the sale of two lots for defendant, a resident of Saginaw, at a price of $2,800.

Case in justice’s court by Frederick W. Whitman against Frederic C. Collin for damage to plaintiff’s automobile. There was judgment for plaintiff and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error. On appeal from justice’s court plaintiff recovered a verdict of $438.65 against defendant as damages re-suiting from the alleged negligence of defendant in causing a collision between plaintiffs automobile and defendant’s automobile.

Bill by William P. Longton and another against Henry H. Stedman and another to enjoin an encroachment upon plaintiffs’ land. From a decree for plaintiffs, defendants appeal.

Charles Hodges was convicted of assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for not less than five nor more than ten years in the State prison at Jackson. The information in this case charged respondent with an assault upon one Edward L. Merritt with intent to kill and murder said Merritt.

Assumpsit by the B. F. Sturtevant Company against the Adolph Leitelt Iron Works for the purchase price of a school ventilating system. Judgment for defendant. Plaintiff brings error. On May 8, 1914, plaintiff entered into a contract with defendant for the sale of a ventilating system to be installed in the South High School in the city of Grand Rapids. This contract was breached by the defendant, and plaintiff brought its action to recover damages arising out of said breach.

E. L. Avery presented a claim against the estate of Henrietta Carpenter, deceased, for services rendered. The claim was disallowed in the probate court, and claimant appealed to the circuit court. Judgment for claimant. Defendant Russell Woodruff, executor, brings error. Claimant, a duly qualified dentist, practicing his profession in the city of Howell, filed a claim against the estate of Henrietta Carpenter as follows: Bill of Particulars. Howell, Mich., Nov. 15, 1915.

<p>1. Appeal and Error — Review—New Trial.</p> <p>There is no question for the consideration of the Supreme Court on appeal where no request is made for findings of fact or law by the court, and no exception is taken to the making or filing of a judgment containing purported findings and no other exception is taken except as to the court’s refusal to grant a motion for a new trial.</p> <p>2. Same — Defective Record — Amendments.</p> <p>Where there are purported findings in a judgment but the record shows no request for findings nor exceptions, the record is not the subject of amendment on appeal by an offer to supply proposed findings and exceptions claimed to have been given to the court after the judgment.</p>

Assumpsit in justice’s court by George F. Spedding against Albert G. Griggs, Charles F. Fuller and Ernest M. Cole, copartners as Griggs, Fuller & Company, for breach of an alleged contract for the purchase of certain apples. There was judgment for plaintiff and defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

<p>1. Animals — Distraint Damage Feasant — Trover — Statute — Remedy.</p> <p>Where the validity of the restraint of a trespassing animal is in question the special remedy of replevin provided by 3 Comp. Laws 1915, § 13117 et seq., governs, and trover will not lie.</p> <p>2. Same — Damages.</p> <p>One who distrains a hog trespassing on premises occupied by him is entitled to at least nominal damages.</p> <p>3. Same — Distraint Damage Feasant — Regularity of Proceedings — Bona Fides.</p> <p>The question of irregularity in distraint proceedings cannot be determined in an action of trover for the conversion of a hog, which defendant claims to have restrained under the statute, as the question is whether his claim was made in good faith.</p> <p>4. Same — Distraint Damage Feasant — Damages.</p> <p>A hog which is found trespassing on property occupied by a person is distrained in good faith under 3 Comp. Laws 1915, § 13117 et seq., where it is found by such person upon his premises and he shuts it up, notifies the wife of the owner and requests her to have her husband, who is absent, come to his place as soon as he returns, and in a few hours the owner is in fact actually notified of the hog’s detention, and, upon his not calling, a written notice of distraint and demand of payment for care and expense is made, and he later causes the amount due to be determined, although he tells the owner’s wife at the time of the talk with her that the damage was nothing.1</p>

<p>1. Animals — Distraint on Animals at Large — Highways and Streets — Statutes.</p> <p>Under 2 Comp. Laws 1915, § 7287, the owner and occupant of land may distrain animals which are running at large in the highway opposite his land.</p> <p>2. Same — Highways and Streets — Agency.</p> <p>The owner and occupant of land who has the right to dis-train animals which are in a highway opposite his land may do so either himself or by his authorized agent.</p> <p>3. Same.</p> <p>Where a wife occupying land with her husband distrains animals running at large in the highway opposite the premises as an authorized agent of her hushand it is immaterial whether she is an occupant of land within 2 Comp. Laws 1915, § 7287, so as to be personally authorized to distrain such animals.</p> <p>4. Same — Distraint—Regularity of Proceedings — Statutes.</p> <p>The regularity of proceedings for the distraint of an animal taken while running at large in a highway cannot be tested in an action of trover, and can only be tested in the special action of replevin provided by 3 Comp. Laws 1915, § 13117 etf seq.</p> <p>5. Same — Evidence.</p> <p>The price at which cattle are sold in distraint proceedings is some evidence of their value.</p> <p>6. Appeal and Error — Evidence — Admissibility — Harmless Error.</p> <p>In an action of trover for the distraining of cattle, any error in the admission of evidence as to the price at which the cattle were sold is harmless where the question of the value of the animals is not reached by the jury.</p> <p>7. Same — Trial—Instructions—Harmless Error.</p> <p>The admission of evidence of the distraint proceedings taken by defendant for the purpose of showing their regularity was harmless where the court, in its charge, told the jury repeatedly that the only question.for their determination was whether the cattle were running at large and did not submit the question of regularity or want of regularity of the proceedings to the jury.</p> <p>8. Same.</p> <p>In an action of trover for cattle distrained, the objection that the trial court gave undue prominence to the testimony of defendant’s wife, who had shut up the cattle, and did not call attention to the fact that the testimony of plaintiff's hired man, who disputed her, was corroborated by other witnesses, was untenable, where, although the court in one part of its charge did state the claim of defendant as testified to by his wife and the claim of plaintiff as testified to by plaintiff’s hired man and said, “There is the testimony of the two,” he later in the charge again mentioned the conflict between the two witnesses, and called attention to the fact that testimony had been given by both parties tending to corroborate the testimony of each, as the charge must be considered in its entirety, and, when so considered, was sufficient.</p> <p>9. Animals — Restraint oe Animals at Labge — Owner’s Knowledge.</p> <p>Where cattle are running at. large in a highway they are subject to restraint, irrespective of knowledge thereof or negligence on the part of the owner.</p>

<p>1. Total — Instructions — Requests to Charge — Appeal and Error.</p> <p>A party is entitled to have the law of the case stated to the jury by the court, and when this is done it is not error to refuse specific requests.</p> <p>2. Negligence — Gross Negligence — Definition.</p> <p>Gross negligence may be defined as the intentional failure to perform a manifest duty in wanton, wilful or reckless disregard of the consequences as affecting the life or property of another, and it also implies a thoughtless disregard of consequences without the exercise of any effort to prevent or avoid them.1</p> <p>3. Same — Gross Negligence — Contributory Negligence — Damages.</p> <p>Where gross negligence of the defendant causes the injury, the plaintiff may recover notwithstanding his contributory negligence.</p> <p>4. Same — Gross Negligence — Discovered Peril — Damages.</p> <p>Where the defendant discovers the peril of the plaintiff seasonably to prevent the accident, but in reckless, wanton or wilful disregard' of the consequences omits to do what he ought to do or does what he ought not to do to avoid the accident, he is liable for such negligence.</p> <p>5. Street Railways — Collision—Personal Injuries — Question for Jury — Appeal and Error.</p> <p>There is no error in refusing to submit the question of gross or discovered negligence to the jury, in an action by the driver of a wagon to recover for injuries received in a collision with a street car, where plaintiff, although he saw defendant’s car coming, attempted to cross the car tracks in front of the approaching car and was struck and injured by it, although the motorman, as soon as he saw plaintiff, put on the reverse and did everything possible to stop the car, according to undisputed testimony of the motorman and passengers. ,</p>

Bill by John Schweyer & Company against Joseph T. Mellon and another to foreclose a mortgage. Defendants filed an answer in the nature of a cross-bill asking for the cancellation of the mortgage as fraudulent. From a decree dismissing both bill and cross-bill, plaintiff appeals.

Assumpsit by the B. F. Goodrich Rubber Company against the Sewell Cushion Wheel Company for goods sold and delivered. Judgment for defendant. Plaintiff brings error. Plaintiff and its predecessors for a number of years manufactured and sold to defendant rubber cushions, used by it in a specially designed and patented automobile wheel, used principally on automobile trucks.

, presiding.. Bill by Mary A. Davison against John E. S. Taylor and another to restrain the violation of certain building restrictions. From a decree for plaintiff, defendants appeal. On April 17, 1906, plaintiff and her husband, being then owners by the entirety, platted a subdivision in Highland Park known as Davison’s subdivision of Park lot 1 of quarter section 5, 10,000-iacre tract.

Bill by John Ickler against Robert J. Mullen for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.

Bill by O. Le Grand Allen against Walter S. Powers, administrator of the estate of Charles T. Allen, deceased, and others to set aside a fraudulent conveyance. From a decree dismissing the bill, plaintiff appeals.

, presiding. Case in justice’s court by William Springer and Elmer E. Stockwell, copartners as the Artcraft Screen Company, against Charles Fuller for the conversion of a screen. There was judgment for plaintiffs, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error. Plaintiffs are engaged in manufacturing and selling gold fiber moving picture screens.

Assumpsit by the township of Wexford against John Seeley and others on a statutory bond. Judgment for plaintiff. Defendants bring error. Defendant Seeley was treasurer of plaintiff township, beginning his term in April, 1915. This action is upon his official bond to recover a shortage of $2,-637.61, which he was unable to produce at the time of his settlement with the township board in the spring of 1916, due to the failure of the Wexford Bank.

Bill by George W.- Barth, and others against the Christian Psychopathic Hospital Association to restrain the erection of a hospital adjacent to plaintiffs’ residences. From a decree dismissing the bill, plaintiffs appeal.

Case by August Cyrowski against the Polish-American Publishing Company and others for libel. Judgment for plaintiff. Defendants bring error.

Condemnation proceedings by the Detroit, Bay City & Western Railroad Company against the First National Bank of Yale and others to acquire a right of way. From an order confirming the award of the jury, defendants appeal. These proceedings were instituted in the probate court of Sanilac county under chapter 107, 3 How. Stat. (2d Ed.) § 6596 to and including § 6601 (2 Comp.

Case by James L. Chapman, an infant, by Amelia Voss, his next friend, against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error. This action is brought by James L. Chapman, through his guardian, Amelia Voss, against the defendant railroad company under the Federal employers’ liability act for injuries received while in the employ of the defendant on August 20, 1915, in the city of Owosso, Mich.

Petition by David Brown against Hugh Brown for the payment to plaintiff of money,in the hands of a receiver. From a decree for defendant, petitioner appeals. In the year 1903, plaintiff, who was the owner of a large farm, entered into a contract with the defendant for its sale.

Bill by Winfred L. Case against the city of Saginaw and others to enjoin the spreading of an assessment against plaintiff’s land. From a decree dismissing the bill, plaintiff appeals.

<p>Negligence — Railroad Crossings — Automobiles.</p> <p>In' an action by an. automobile owner to recover for personal injuries received in a collision with defendant’s train at a crossing, judgment affirmed by a divided court.</p>

, presiding. Bill by Abbie Corby and others, against Adele Campau Thompson and others to quiet title to land. From a decree for plaintiffs, defendants, appeal.

Arthur B. Eaton was convicted of manslaughter and sentenced to imprisonment for not less than six years nor more than 15 years in the State prison at Jackson.

<p>1. Appeal and Error — Evidence—Assignments' op Error.</p> <p>That the verdict is against the weight of the evidence will not be considered on appeal, no motion for a new trial having been made nor assignments of error properly raising the question presented.</p> <p>2. Trial — Conduct op Court — Appeal and Error.</p> <p>Upon the claim that the court showed irritation and unduly admonished counsel in the trial of a will contest so that he became confused and was unable to properly present his clients’ claims to the jury, record examined and held, not to establish prejudicial error.</p> <p>3. Wills — Instructions—Evidence.</p> <p>An instruction that, if testatrix, while in good health, contracted for a monument substantially as she had previously provided for in the will, it was an important factor in determining the validity of the will and tended to support it, was not prejudicial error as tending to attach too much Importance to this transaction.</p> <p>4. Same.</p> <p>An instruction that evidence regarding such contract was admitted solely to aid the jury in determining whether testatrix understood what she was doing or whether she was unduly influenced in mating the will, and not as bearing on the validity of the contract, was proper.</p> <p>5. Same — Gifts—Instructions.</p> <p>An instruction that the validity of a gift from testatrix in her lifetime to her daughter is not in issue in the case was proper.</p> <p>6. Appeal and Error — Court Rules — Waiver.</p> <p>Assignments of error not discussed in appellants’ brief are treated as waived under Supreme Court Rule No. 40.</p>

, presiding. Replevin in justice’s court by Peter La France against Delia Cullen. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Garnishment proceedings by the American Steel & Wire Company against John Dedrick as garnishee defendant of Fred Dedrick. Judgment for plaintiff for less than amount claimed. Plaintiff brings error.

, presiding. Assumpsit in justice’s court by Geprge Armstrong, doing business as the Cass Avenue Electric Garage, against Ada T. Backus for services rendered. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Cross-appeals from Wayne; Collingwood, J., presiding. Bill by Harrison Geer against Matthew Finn for the appointment of a receiver pendente lite and for ah accounting. From a decree awarding compensation to the receiver, both parties appeal.

Mary E. Perry presented her claim against the Woodward Bowling Alley Company and another for the accidental death of her son in defendant’s employ. From an order awarding compensation, defendant and the Ocean Accident & Guarantee Company, insurer, bring certiorari.

Assumpsit by August J. Otto against the Manistee & Northeastern Railroad Company for breach of a contract to deliver certain goods. Judgment for defendant on a directed verdict. Plaintiff brings error.

Mary B. Landers presented her claim for compensation against the city of Muskegon for the accidental death of her husband in defendant’s employ. From an order granting compensation, defendant brings certiorari.