Volume 201 — Michigan Reports

Bill by Homer C. Millen and another against Nathan S. Potter and others for an accounting and the appointment of a receiver for defendant Michigan Portland Cement Company. From a decree dismissing the bill, plaintiffs appeal.

<p>Cross-appeals from Wayne; McDonald, J., presiding.</p> <p>Bill by J. W. McCausey & Company against Henry B. Gittleman, the Maryland Casualty Company, William E. Moss, the Webster & McCausey Lumber Company, Walter D. Gale, and Martin Brosteau to foreclose a mechanic’s lien. Defendants Lumber Company, Gale and Brosteau filed cross-bills claiming liens. Defendant Moss filed a cross-bill to foreclose a mortgage. From the decree rendered, plaintiff and defendants Lumber Company, Gale and Brosteau appeal.</p>

Assumpsit by the Macbeth-Evans Glass Company against Oscar Gumbinsky and another, directors of the National Gas Light Company, for a debt of the corporation under 2 Comp. Laws 1915, § 9028. Judgment for defendants. Plaintiff brings error.

Assumpsit by George E. Nichols, Arthur F. Shaw and Edward P. Whitney, copartners as Nichols, Shaw & Whitney, against Dudley E. Waters and Paul H. King, receivers of the Pere Marquette Railroad Company, and others for attorneys’ fees. Judgment for defendants on a directed verdict. Plaintiffs bring error.

, presiding. Assumpsit by A. F. Young & Company against the Grand Rapids & Indiana Railway Company for breach of a contract to transport certain potatoes. Judgment for defendant on a directed verdict. Plaintiff brings error.

Bill by George Groves against William Bowman, highway commissioner of Gibson township, to restrain the laying out of a highway on plaintiff’s land. From a decree for plaintiff, defendant appeals.

Assumpsit by J. Pratt Underwood, trustee, against Frank W. Town on a land contract. Judgment for plaintiff for less than amount claimed. Plaintiff brings error.

<p>Intoxicating Liquors — Criminal Law — False Label — Common Carriers.</p> <p>Evidence, in a prosecution for violation of tlie Pray act (2 Comp. Laws 1915, § 7118 et seq.), that defendant had liquor shipped under a fictitious name, from Chicago to a point in a wet county, and then transported same by means of a common carrier dray line into a local-option county, held, sufficient to sustain a conviction. Ostrander, C. J., and Bird, Brooke, and Kuhn, JJ., dissenting.</p>

Petition by Edward Frohlich against William Ademan, Jr., revived against Henry I. Armstrong and another, executors, to reopen a case in chancery on the ground of newly-discovered evidence.

Mamie Arnett presented separate claims for compensation against the Hayes Wheel Company and the Grand Rapids Blow Pipe & Dust Arrester Company for the accidental death of her husband in defendants’ employ. From an order awarding compensation against the Hayes Wheel Company, it and the Michigan Workmen’s Compensation Mutual Insurance Company, insurer, bring, certiorari.

Annie Miller presented her claim for compensation against the Grand Trunk Western Railway Company for the accidential death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Summary proceedings by Frank Sayles against George E. Murphy for the possession of certain leased premises. Plaintiff had judgment of restitution before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

Bill by George E. Murphy against Frank Sayles to restrain summary proceedings for the possession of leased premises. From a decree dismissing the bill, plaintiff appeals.

Ralph Green presented his claim for compensation against the Buick Motor Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the New England Equitable Insurance Company, insurer, bring certiorari.

Paul Reiss presented his claim for compensation against the Northway Motor & Manufacturing Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the New England Equitable Insurance Company, insurer, bring certiorari.

<p>1. Appeal and Error — Directed Verdict — Evidence.</p> <p>On appeal from a directed verdict, appellant’s testimony should be given the most favorable construction it will bear.</p> <p>2. Master and Servant — Personal Injuries — Negligence—Question for Jury.</p> <p>In an action for personal injuries received by a servant when a scaffold on which he was working gave way, th6 negligence of the master, who had not elected to come under the provisions of the workmen’s compensation law, held, a question for the jury, under the evidence. Brooke and Fellows, JJ., dissenting.</p>

<p>Exceptions before judgment from Ottawa; Cross, J.</p> <p>Joseph E. Kirchoff was convicted of maintaining a saloon in a residence district'in violation of section 37, Act No. 291, Pub. Acts 1909.</p>

<p>Error to Wayne; Hally, J.</p> <p>Petition by the Pigott-Healy Construction Company against the H. A. Jones Real Estate Company for confirmation of an award. Judgment for petitioner. Defendant brings error.</p>

Bill by Wallace E. Mosher and another against Page Borden, administrator of the estate of Henry N. Miller, deceased, and others, to restrain a sale of land on execution. From a decree dismissing the bill, plaintiffs appeal.

, presiding. Bills by Catherine Connor against Christine Heide and Thomas Reardon and others to set aside certain deeds. From a decree dismissing the bills, plaintiff appeals.

Clark H. Gleason, executor of the last will and testament of Jerome Miner, deceased, presented his second annual account. The account was allowed in part in the probate court, and the executor appealed to the circuit court. Judgment affirming the order of the probate court. The executor brings error.

<p>Error to Branch; Knowlen, J.</p> <p>Assumpsit by the Western Newspaper Union against Horace Kitchel for services rendered. Judgment for plaintiff. Defendant brings error.</p>

<p>Error to Calhoun; North, J.</p> <p>Case by Jennie M. Wadkins against the city of Albion for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

Case-made from Cass; Des Voignes, J. Assumpsit in justice’s court by Arthur K. Nixon against George Hood and others upon a replevin bond. There was judgment for plaintiff, and defendants appealed to the circuit court. Judgment for plaintiff. Defendants appeal.

Mandamus by H. A. Haynes, medical superintendent of the Michigan Home and Training School, to compel William B. Williams, circuit judge of Lapeer county, to vacate an order sustaining an order of the probate court denying a petition filed under Act No. 34, Pub. Acts 1913.

Case by Roy Bowers against Neil A. Gates and the Fidelity & Casualty Company of New York for malpractice. From an order denying a motion to dismiss as to defendant company, it brings certiorari.

Clarence G. Carnahan presented his claim for compensation against the Mailometer Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Frankfort General Insurance Company, insurer, bring certiorari.

Bertalan Nagy presented his claim for compensation against the Solvay Process Company for injuries received in defendant’s, employ. From an order denying compensation, plaintiff brings certiorari.

<p>Appeal from Lenawee; Hart, J.</p> <p>Bill by Lewis J. Marshall against the Wabash Railway Company and another to enforce a lien for the amount of a judgment. From an order granting a motion to dismiss, plaintiff appeals.</p>

<p>Deeds — Ejectment—Reversion—Evidence—Sueeiciency.</p> <p>In ejectment to recover possession of land deeded to a subordinate grange “for tbe purpose of building a grange ball and store, so long as tbe said parties of tbe second part shall use tbe said premises for said purpose,” evidence examined, and held, sufficient to sustain a directed verdict in favor of defendant.</p>

<p>1. Trial — Evidence—Presumptions—Directed Verdict.</p> <p>Upon defendant’s motion to direct a verdict in its favor, , the testimony most favorable to plaintiff’s claim must be accepted.</p> <p>2. Negligence — 1Trial—Personal Injuries — Evidence — Customs and Usages.</p> <p>In an action for personal injuries received by plaintiff, a skilled mechanic, in falling into an unguarded pit in defendant’s factory, while going to see a foreman, seeking employment, in view of the testimony of the foreman that he had been instructed by the manager to surround himself with skilled help, it could not be said that there was no evidence tending to establish a custom in defendant’s plant of permitting the foreman to employ skilled labor for his department.</p> <p>3. Same — Question oe Fact — Evidence—Inferences.</p> <p>Where the evidence as to whether the custom of allowing the foremen to employ the skilled labor was later abrogated by a new manager was contradictory, a question of fact was presented for the jury; they being the judges of the credibility of the witnesses and the legitimate inferences to be drawn from the testimony.</p> <p>4. Same — Contributory Negligence — Negligence.</p> <p>It cannot be said, as a matter of law, that plaintiff was guilty of contributory negligence because he entered defendant’s plant unattended at an early hour in the morning; a pitfall upon the first floor of a manufacturing plant not being a thing to be expected by an ordinarily prudent person.</p> <p>5. Appeal and Error — New Trial — Weight oe Evidence.</p> <p>That the Supreme Court might reach a different result on the facts than did the jury, is not sufficient justification for reversal on the ground that the verdict was against the weight of the evidence.</p> <p>6. Damages — Personal Injuries — Excessive Verdict — Permanent Injuries — Earning Capacity.</p> <p>Where plaintiff was 39 years old at the time of the accident, a skilled mechanic earning $25 a week, and at the time of the trial his pecuniary loss amounted to $2,100, a verdict of $9,800 was not excessive for fracture of the thigh bone, resulting in one leg being shorter than the other; he having spent five weeks in the hospital at one time and about eight months at another, suffering considerable pain; and the inference is strong that his earning power has been materially reduced.</p>

<p>1. Suicide — Accident—Evidence—Presumptions.</p> <p>Where a person is found dead under such, circumstances that death may have been due to suicide or to accident, the presumption is against suicide and in favor of accident.</p> <p>2. Master and Servant — Workmen’s Compensation Act — Finding oe Industrial Accident Board — Review.</p> <p>On certiorari to review an award by the industrial accident board, under the workmen’s compensation act, conclusions of the board, supported by competent testimony, will not be reviewed by the appellate court.</p> <p>3. Same — Death—Presumptions—Burden oe Prooe.</p> <p>Where an employee engaged in running an elevator met his death in such a way that there was a reasonable inference that it was the result of an accident while he was engaged in his employment, it falls upon the employer, who seeks to evade liability under the workmen’s compensation law, to prove the contrary.</p> <p>4. Same — Evidence—Finding oe Industrial Accident Board.</p> <p>Evidence held, to support the finding of the board that deceased met with an accident which arose out of and in the course of his employment, causing his death.</p>

<p>1. Parties — Partnership • — ■ Individual Name • — • Right to Sue — Fraud.</p> <p>Where the record discloses that at the time suit was brought for fraud in the sale of a saloon and restaurant business, plaintiff was the only person interested in the business, he having a written bill of sale from another who had had some interest and expected to be a partner, plaintiff could bring the suit in his individual name.</p> <p>2. Appeal and Error — Names—Fictitious Names — Registration.</p> <p>The question of plaintiff’s failure to comply with the law relating to partnership registration (Act No. 101, Pub. Acts 1907; 2 Comp. Laws 1915, § 6349 et seq.; Act No. 164, Pub. Acts 1913; 2 Comp. Laws 1915, § 6354 et seq.), raised for the first time in the Supreme Court, will not be reviewed.</p> <p>3. Trial — Conduct of Jurors — Prejudicial Error.</p> <p>Where plaintiff was a man of limited intelligence, and made a very dull and unresponsive witness, both court and counsel endeavoring to impress upon him that he should answer the questions, a remark by one of the jurors, “Say ‘Yes’ or ‘No.’ We will stand by you if he wants to lick you or anything,” did not show any prejudice with reference to the merits of the case requiring reversal.</p> <p>4. Same — Evidence—Sufficiency—Excessive Verdict.</p> <p>Evidence held, sufficient to sustain the finding of the jury which was not against the weight of the evidence; nor was the verdict excessive.</p>

Bill by Albert L. Hart, executor of the will of Oscar Hart, deceased, against Belle D. Hart and Myra Hart Abram for a construction of said will. From the decree rendered, defendant Abram appeals.

<p>1. Mandamus — Pleading—Conclusiveness—Statutes.</p> <p>Odl mandamus to review an order of the court below granting a preliminary injunction, all material facts not specifically denied by the plea must be taken to be admitted as true, under section 13440, 3 Comp. Laws 1915.</p> <p>2. Injunction — Bond—Pending Suit — Abuse oe Discretion.</p> <p>Where a former proceeding for an accounting, based on the ground of a copartnership, was decided by the Supreme Court against plaintiff, and the injunction dissolved, it was an abusé of discretion of the court below to grant another injunction, on the theory of a joint adventure, without requiring of plaintiff a sufficient bond to protect defendant, who would thereby suffer great damage; the allegation that plaintiff was financially irresponsible not being denied; and there being no claim that defendant was -not able to pay any amount that might be decreed against him.</p>

Case by John Coston, administrator of the estate of Loren Barnes, deceased, against the Ann Arbor Railroad .Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

Assumpsit by Mary Davis, administratrix of the estate of Lewis S. Davis, deceased, against Archibald Buttars and another on a contract for the sale of a warehouse and stock of merchandise. Judgment for plaintiff. Defendant Buttars brings error.

Case by Wocisch G. Kiowiatkowski against the Duluth-Superior Dredging Company for damages caused by the deposit of water, sand, etc., upon his land. Judgment for plaintiff. Defendant brings error. •

, presiding. Bill by Charles L. Johnston against Herman Loose and another, minors, to restrain an action of ejectment. From an order denying a motion to dismiss, defendants appeal.

<p>Error to Bay; Houghton, J.</p> <p>Assumpsit by Edward W. Brown against A- F. Bartlett & Company on a contract of employment. Judgment for plaintiff. Defendant brings error-</p>

Charles M. Abbott, administrator of the estate of Phila M. Sadler, deceased, presented a claim against the estate of Franklin Sadler, deceased, for the amount of certain promissory notes and certificates of deposit. The claim was allowed in part, and plaintiff appealed to the circuit court. Judgment for plaintiff for less than amount claimed. Plaintiff brings error.

<p>1. Banks and Banking — Joint Deposits — Ownership — Gifts Inter Vivos.</p> <p>In an action by a father against a daughter for the amount of a deposit in a bank placed there by plaintiff’s wife in the joint names of herself and defendant, and withdrawn by the latter after her mother’s death, the burden of proof is upon plaintiff to establish his ownership of the money, which he claimed to have entrusted to his wife to handle for him.</p> <p>2. Married Women — Building and Loan Stock — Ownership of Fund Accumulated — Statutes.</p> <p>Section 10001, 2 Comp. Laws 1915, providing that married women may become subscribers to the capital stock of building and loan corporations, and hold, control, and transfer their stock in all respects as femmes sole, and that their stock shall not be subject to the control of or liable for the debts of their husbands, construed, and held, to protect married women in the ownership of the fund derived from and accumulated through the ownership of such stock.</p> <p>3. Husband and Wife — Marital Duties — Adult Children.</p> <p>There is no legal obligation upon a wife imposed upon her by her marital duties to her husband in caring for, managing, and doing the housework of their home, to assume the extra burden of taking their adult children as boarders.</p> <p>4. Banks and Banking — Joint Deposits — Ownership—Evidence.</p> <p>Evidence examined, and held, insufficient to sustain the finding of the jury that plaintiff was the owner of the fund.</p>

, presiding. Assumpsit by the McMorran Milling Company against the C. H. Little Company for breach of a contract to purchase gravel. Judgment for plaintiff on a directed verdict. Defendant brings error. This record discloses that prior to the year 1909 individuals and companies located at Detroit dealing in building sand and gravel, had, without protest from either the riparian owners or the Federal government, obtained a considerable of their supply from the St. Clair river.

<p>Error to Kalamazoo; Weimer, J.</p> <p>Case by Carl Sorenson against the Kalamazoo Auto Sales Company and William D. Watkins for personal injuries. Judgment for plaintiff. Defendants bring error.</p>

Bill by Joseph W. Oliver and another against Frank A. Baldwin and others for an accounting. From a decree for plaintiffs, defendants appeal.

Bill by Henry Spitzley and another against Earl D. Garrison and others to impeach a decree. From a decree dismissing the bill, plaintiffs appeal.

Albert La Belle presented his claim for compensation against the village of Grosse Pointe Shores for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Employers’ Liability Assurance Corporation, Limited, insurer, bring certiorari.

Bill by John J. McGuire against Bessie D. McGuire for a divorce: On petition of plaintiff for a modification-of the decree. From an order denying the petition, plaintiff appeals.

Bill of interpleader by Thomas Walters against the Pittsburgh & Lake Angeline Iron Company and John Berriman and others to determine the title to a trust fund. From the decree rendered, certain defendants appeal.

<p>1. Principal and Agent — Master and Servant — Torts op Servant — Scope op Authority.</p> <p>It is the general rule that an employer is not liable for wanton, wilful, and malicious acts of an employee not authorized or ratified.</p> <p>2. Master and Servant — Assault by Servant — Directed Verdict.</p> <p>In an action by a patron of a restaurant against the proprietor for personal injuries received by plaintiff, where the case made by plaintiff’s testimony was that the head waiter, as plaintiff was about to leave defendant’s restaurant, made an unexpected, unprovoked, and wholly indefensible assault upon him, so sudden that there was no opportunity for any one else to interfere, the eourt below should have directed a verdict for defendant.1</p> <p>3. Same — Trial—Instructions—Evidence.</p> <p>In view of the facts as testified to by plaintiff, an instruction by the court that defendant was hound to see that no assault was committed on plaintiff by an employee of the restaurant, was erroneous.</p> <p>4. Principal and Agent — Master and Servant — Torts op Agent —Scope op Authority.</p> <p>If a patron of a restaurant without provocation strikes a waiter and receives in return a harder blow than a jury may think it was necessary to deliver, the consequences are not for the proprietor and employer to settle, he neither aiding, abetting, nor counseling the .action of the waiter.</p> <p>5. Master and Servant — Argument op Counsel — Trial—Curing Error.</p> <p>Where plaintiff’s counsel, in his opening statement, referred to the head waiter as a “professional bouncer, as the evidence will show,” and the evidence was limited to two occasions within the past two years, the remark, while prejudicial, in view of the peculiar nature of the case and the fact that a question similar in its character was asked one of plaintiff’s witnesses, will not he considered reversible error, the court having properly cautioned the jury upon the subject.</p>

Minnie Woodhall presented her claim for compensation against John B. Irwin for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Southern Surety Company, insurer, bring certiorari.

, presiding. Assumpsit by the Stone-Ordean-Wells Company against the New England Pie Company on a contract for the repurchase of unsold goods. Judgment for plaintiff on a directed verdict. Defendant brings error.

Assumpsit by Arthur Londo against the Northwestern Cooperage & Lumber Company for work and labor. Judgment for defendant non obstante veredicto. Plaintiff brings error.

Case by Glen Houseman against Gabriel Karicofe, Agnes Karicofe, and Oliver Karicofe for personal injuries. Judgment for defendants Gabriel and Agnes Karicofe on a directed verdict and for plaintiff against defendant Oliver Karicofe. Plaintiff and said defendant bring error.

Bill by May Steel against Daisy Steel, E. Floyd Hoaglin, and others to set aside certain deeds. From a decree dismissing the bill, plaintiff appeals.

, presiding. Assumpsit in justice’s court by the Anderson Forge & Machine Company against the Sterling Motor Company for breach of a contract to purchase certain crankshafts. There was judgment for plaintiff, and' defendant appealed to the circuit court. Judgment for-plaintiff. Defendant brings error.

Assumpsit by Edwin L. Boyd against Paul H. King and another, receivers of the Pere Marquette Railroad Company, for breach of a contract to transport certain stock. Judgment for plaintiff. Defendants bring error.

<p>Error to Gogebic; Cooper, J.</p> <p>Assumpsit by John F. Finnegan against the WordenAlien Company for a balance due on a bridge contract. Judgment for plaintiff. Defendant brings error.</p>

Case-made from ' Wayne; Hosmer, J. Condemnation proceedings in justice’s court by the village of Hamtramck against David W. Simons for the widening of a street. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant appeals.

Case-made from Calhoun; North, J. Assumpsit by William E. Ware against the city of Battle Creek for an amount allowed by the common council for office rent. Judgment for defendant. Plaintiff appeals.

Richard Slinger was injured while in the employ of the Muskegon Motor Specialties Company and entered into an agreement for compensation during disability: On petition of defendant and the Zurich General Accident & Liability Insurance Company, Limited, insurer, to be relieved from further payments. From an order denying the petition, defendants bring certiorari.

, presiding. Wilhelmina Hahn and Christian F. Hagen presented for probate the last will of Friedricke Weber, deceased. From an order allowing the will, Charles F. Weber appealed to the circuit court. Judgment for contestant. Proponents bring error.

, presiding. Assumpsit by Eugene Watson against Andrews & Company for an amount due on an account. Judgment for plaintiff on a directed verdict. Defendant brings error. The plaintiff is a resident of Flint, Michigan. The defendant is a stockbroker maintaining an office for the transaction of business in the city of Chicago. During the years 1914 and 1915, plaintiff transacted considerable business with defendant in the way of buying and selling stocks.

Condemnation proceedings in justice’s court by the city of Lansing against Frederick C. Jenison, Sophie S. Turner and others to acquire certain land for a public alley. From an award of the jury determining the necessity and fixing the damages, defendant Turner appealed to the circuit court. Judgment quashing the proceedings as to defendant Turner. Plaintiff brings certiorari.

Peter Cramer and others presented their claim for compensation against the West Bay City Sugar Company for the accidental death of decedent in defendant’s employ. From an order awarding compensation, defendant and the General Accident, Fire & Life Assurance Corporation, Limited, insurer, bring certiorari.

, presiding. John J. Marx and others presented for probate the last will of Frank Marx, deceased. The will was allowed in the probate court, and Gracie Marx Morrison appealed to the circuit court. Judgment for proponent on a directed verdict. Contestant brings error.

Assumpsit by Fannie Luellen and another against the New York Life Insurance Company on a policy of insurance. Judgment for plaintiffs on a directed verdict. Defendant brings error. On May 11, 1897, defendant, a mutual life insurance company, executed at its New York office a policy of insurance upon the life of Albert G. Denmark, on the 20 payment life, 20 year accumulation plan, to which policy was attached the application therefor.

<p>1. Master and Servant — Workmen’s Compensation Act — Course of Employment — Mistake—Admissions. _</p> <p>In proceedings under the workmen’s compensation act, where defendant’s report of the accident to the industrial accident board was made under a misapprehension of the facts, but after learning the actual facts it entered into a contract with the employee for compensation, continuing in the agreement the cause of the accident set forth in the report, held, that the board was justified in treating such action as an admission that the accident arose in the course of deceased’s employment.</p> <p>2. Same — Course of Employment.</p> <p>Where deceased, a fireman in defendant's employ,, with other employees, worked overtime in an effort to get the new factory started, the overtime work being different from the day work, evidence that the employees turned in and helped each other, and that deceased, on the night of the accident, first helped the blacksmith until his job was completed, and then helped another employee, when he received his injury, held, sufficient to sustain a finding of the board that the accident arose out of deceased’s employment.</p> <p>3. Same — Evidence—Expert Witnesses — Finding of Board— Conclusiveness.</p> <p>Where the finding of the industrial accident board that an accident to deceased while in defendant’s employ was the cause of his death was supported by the testimony of one of the attending physicians, although disputed by another physician, such finding, in the absence of fraud, is conclusive, the board being the judge of the credibility of the witnesses, medical as well as lay.</p> <p>See notes in E. R A. 1916A, 23; L. R. A. 1917D, 80.</p>

Bill by Edward McBride, Charles M. Earl, and Daniel J. Pollard, copartners as McBride, Earl & Pollard, against Max Jacob, Ben Jacob, Samuel Jacob, and William Jacob, copartners as M. Jacob & Sons, to restrain the traffic in bottles, etc., bearing plaintiffs’ registered trade-name. From an order granting a motion to dismiss, plaintiffs appeal.

William J. Peterson presented his claim for compensation against the Fisher Body Company for injuries sustained in defendant’s employ. From an order awarding compensation, defendant and the Employers’ Liability Assurance Corporation, Limited, insurer, bring certiorari.

James T. Wilson presented his claim for compensation against the Phoenix Furniture Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Furniture Mutual Insurance Company, insurer, bring certiorari.

, presiding. Case by William Miller against Aben E. Johnson, doing business as the Western Michigan Oakland Company, and others for the conversion of an automobile. Judgment for plaintiff. Defendants bring error.

Mandamus by Frieda Seilnacht and another to compel Edgar 0, Durfee, probate judge of Wayne county, to revive the commission on claims of the estate of Therese Mueller, deceased. From an order granting the writ, defendant brings certiorari. August 2, 1913, a petition for the appointment of an administrator of the estate of Therese Mueller was filed in the probate court for Wayne county.

Albert Van Simaeys presented his claim for compensation against the George R. Cook Company for injuries sustained in defendant’s employ. From an order awarding compensation, defendant and the Prudential Casualty Company, insurer, bring certiorari.

<p>1. Criminal Law — Information—Assault—Joinder of Counts— Election of Count.</p> <p>A count charging the offense of assault with intent to do great bodily harm less than the crime of murder may be joined with one charging assault with a dangerous weapon, but without intending to inflict great bodily harm less than the crime of murder, and election between the counts could not be required on the ground that distinct offenses were charged, where they were committed by the same acts, at the same time, and the same testimony must be relied on for conviction.</p> <p>2. Same — Trial—Instructions—Warning.</p> <p>In a prosecution for assault with intent to do great bodily harm less than the crime of murder, where the evidence showed that defendant deliberately shot in the leg one of a party who were trespassing within the curtilage engaged in a charivari on defendant and his wife, who had been recently married, and the defense was that defendant feared forcible entry into the house and personal violence to himself and wife, held, that the charge of the court, taken as a whole, properly submitted to the jury the questions as to the trespass and threatened assault, and defendant’s duty to give warning and time enough to disperse, before firing designedly.</p> <p>3. Same — Venue—Evidence.</p> <p>In criminal trials the venue must be proved by competent evidence, beyond reasonable doubt, and a conviction cannot be sustained where the record fails to locate the place of the crime within the jurisdiction of the court.</p> <p>4. Same — Judicial Notice.</p> <p>The court will not take judicial notice of the existence or locatior of a place named which is not the name of an incorporated village or township or any other sort of municipality in the county where the trial was had, for the purpose of establishing a venue.</p>

<p>Error to Wayne; Murphy, J.</p> <p>Assumpsit by Henry I. Forsyth against John R. Nostrand for an amount due on commissions earned jointly by plaintiff and defendant. Judgment for plaintiff. Defendant brings error.</p>

<p>Certiorari to Industrial Accident Board.</p> <p>Mary Engberg and Axel Engberg presented their claim for compensation against the Victoria Copper Mining Company for the accidental death of their son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.</p>

<p>1. Husband and Wife — Claim of Married Woman.</p> <p>A claim for board and room of a boarder would belong to the husband and not to the wife, where he was the head of the household, and furnishing the family supplies.1</p> <p>2. Executors and Administrators — Husband and Wife — Assignments — J udgment — Inseparability.</p> <p>In an action by a daughter-in-law against the estate of her mother-in-law for the latter's board and room and for personal services rendered by plaintiff while decedent lived in the home of plaintiff and her husband, a judgment for the full amount claimed, in the absence of an assignment of the claim for board and room, which belonged to the husband, it being impossible to say how much was allowed for board and room and how much for personal services, was manifestly excessive, and should be reversed.</p>

<p>1. Pbincipal and Agent —Agency — Evidence — Sufficiency — Fraud. ,</p> <p>In an action for fraud and deceit in the sale of lands, where the misrepresentations sued upon were made by an alleged agent of the other defendants, the owners of the land, evidence held, insufficient to require the question of agency to be submitted to the jury.</p> <p>2. Same — Evidence—Admissibility.</p> <p>The acts and declarations of one who assumes to be acting as the agent of another are not evidence against the supposed principal until the fact of the agency is established by other evidence.</p> <p>3. Same.</p> <p>The declarations of a person assuming to act for anothei are not admissible to prove either the existence of, or the extent of, the agency.</p>

<p>Error to Wayne; Murphy, J.</p> <p>Replevin by Theodore Luce against the Stott Realty Company for the possession of certain opera chairs. Judgment for defendant on a directed verdict. Plaintiff brings error.</p>

<p>1. Banks and Banking — Trade-Names—Corporations—Equity— Injunction.</p> <p>On a bill by the Detroit Savings Bank to enjoin the threatened use of the name “Bank of Detroit” by another banking corporation, held, that the names are so dissimilar as not to require intervention by a court of equity.</p> <p>2. Same — Confusion—Evidence.</p> <p>Where the two banks were located in the same building in the city of Detroit, evidence as to some confusion on the part of the public, held, to be due to carelessness and not to similarity of names.</p> <p>3. Same — Fictitious Names — Corporate Names — Statutes.</p> <p>Under sections 7968 and 9018, 2 Comp. Laws 1915, requiring the corporate names of banks and other corporations to be dissimilar to any other, only the corporate name will be recognized, and no rights will be acquired because of a fictitious or popular name occasionally applied by the public.</p> <p>4. Same — Geographical Term — Descriptive Name — Injunction.</p> <p>The use of the properly descriptive geographical word “Detroit” by a bank in its business name, in connection with the word “Bank,” descriptive of its business, will not be enjoined, when it is acting in good faith, in the absence of estoppel or of actual fraud.</p>

, presiding. Bill by George Decke against Eugene H. Baker and the Baker Clay Company to compel the return of corporate stock to defendant company and for an accounting. Defendant company filed a cross-bill asking the same relief. From a decree dismissing both bill and cross-bill plaintiff and cross-plaintiff appeal.

<p>1. Drains — Unlawful Construction — Action — Trespass —Certiorari.</p> <p>In an action .against a county drain commissioner and the sureties on his official bond for damages to plaintiffs’ land by the unlawful construction of a drain, held, that certiorari was not their exclusive remedy, but that an action of trespass could be maintained.</p> <p>2. Same — County Drain Commissioner — Liability.</p> <p>Where plaintiffs’ land was omitted from the survey bill and the description of a drain about to be constructed, and no release of right of way, as required by section 4883, 1 Comp. Laws 1915, was ever obtained from plaintiffs nor any proceedings taken in the probate court to determine the necessity for such drain or for the taking of private property for the use and benefit of the public, and the just compensation to be paid therefor, and in tbe construction of such drain a watercourse on plaintiffs’ land was destroyed, the drain commissioner was liable for the damages to plaintiffs’ freehold in an action of trespass.</p> <p>3. Same — Payment of Tax — Waivek.</p> <p>The payment under protest by plaintiffs of the tax assessed against their land for the construction of said drain did not operate as a waiver by them of any damages they were entitled to recover by reason of the trespass.</p> <p>4. Same — Damages—Excessive Verdict — Gkeat Weight of Evidence.</p> <p>Where the evidence as to plaintiffs’ damage was contradictory, but a half score of witnesses, including the purchaser of the land from plaintiffs, testified that the damages for the destruction of the watercourse far exceeded the amount awarded, a verdict for $575, held, not excessive, nor against the great weight of the evidence.</p>

<p>Error to Wayne; Hally, J.</p> <p>Assumpsit by Fred J. Cochran against Herman Staman and another for commissions on the sale of real estate. Judgment for plaintiff. Defendants bring error.</p>

Assumpsit in justice’s court by John, Garrisi against Mary Kass for commissions on the sale of real estate. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment' for plaintiff. Defendant brings error.

<p>1. Indictment and Information — Pleading—Illegal Practice of Medicine.</p> <p>An information under Act No. 368, Pub. Acts 1913, § 7, charging respondent with practicing medicine without a license, is not defective because exceptions contained in the following section were not set out, since, such exceptions not being in the enacting clause of the act, are matters of defense.</p> <p>2. Criminal Law — Instructions—Burden of Proof — Requests to Charge.</p> <p>An instruction that the defendant was presumed to be innocent of the charge brought against him, and that such presumption abides with him throughout the trial; that the arrest raised no presumption of guilt; that the burden of proof of establishing the guilt of accused was upon the people; and that to be justified in rendering a verdict of guilty the jury should be convinced beyond a reasonable doubt that every element of the offense charged had been proved, held, to fully protect the rights of defendant and the refusal to give a request in the language submitted was not error.</p> <p>3. Same — Witnesses — Cross-Examination — Evidence — Credibility — Impeachment.</p> <p>Where defendant testified, on direct examination, that he had never held himself out as a physician or surgeon, letters and a card holding him out as a physician, although dated long before the date of the offense charged, were admissible, on cross-examination, as bearing upon his credibility.</p> <p>4. Same — Evidence—Witnesses—Rebuttal.</p> <p>In view of such testimony by defendant, it was not error to admit the testimony of the person to whom such letters were written relating the circumstances that occurred at the time.</p> <p>5. Same — Evidence—Rebuttal.</p> <p>In a prosecution for practicing medicine without a license, where defendant’s counsel had intimated that a' claim might be made that defendant resided in another county, it was not error to show by the deputy eounty clerk that defendant was not registered in such county, even though such witness’ name was not indorsed on the information; ■such testimony being in effect rebuttal and being so treated by the court.</p>

Assumpsit in justice’s court by Arnold B. Cooper, doing business as A. & W. Cooper, against Michael Sonk and others on a promissory note. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendants bring error.

<p>Error to Hillsdale; Chester, J.</p> <p>Case by Floyd W. Downs against Travis A. Fowler for personal injuries. Judgment for defendant. Plaintiff brings error.</p>

<p>1. Corporations — Officers and Agents — Authority of-Treasurer to Issue Notes — Acquiescence—Estoppel.</p> <p>In an action on a promissory note issued by the treasurer of the corporation maker, where it appeared that at the time of the giving of said note there were other notes outstanding all issued by said treasurer with the apparent knowledge and acquiescence of the board of directors, his authority may be fairly implied from such continued acts, and defendant was estopped from questioning it.</p> <p>2. Same.</p> <p>An officer of a corporation can deal with the corporation if his acts are open and fair and known to the directors and stockholders.</p> <p>3. Same — Dividends Declared at Stockholders’ Meeting — Validity.</p> <p>While it is the rule that directors alone have the authority to declare dividends out of the net earnings of a corporation, the fact that dividends were declared at a meeting called on the record a “stockholders’ meeting” were in effect the actions of the directors, where it appeared that all directors were present and fully exercised their judgment and discretion.</p> <p>4. Same — Dividends—Determination oe Earnings — Dude.</p> <p>In deciding whether a dividend was rightfully made, the transaction must he viewed from the standpoint of that time, and not in the light of subsequent events; notes or overdrafts by persons then considered abundantly good should not be counted as losses because they afterwards proved such.</p> <p>5. Same.</p> <p>Whether or not there were available net assets to warrant the directors of the corporation in declaring the same, held, a question for the jury, under proper instructions.</p>

<p>Fraudulent Conveyances — Husband and Wife — Estates by Entireties.</p> <p>Where a husband and wife owning a farm by the entireties exchanged it for two houses and lots in a city, taking title by the entireties, and paying in cash a difference of $4,100, the husband at the same time disposing of his personalty, on a bill filed in aid of execution by creditors of the husband on indebtedness owing at the time the exchange was made, held, that to the extent of one-half the cash payment the transaction was in fraud of creditors, and the houses should be subject to their claim to that amount. Ostbandee, C. J., dissenting.</p>

Bill by Charles Rosenzweig and others against Albert A. Rose to restrain the violation of certain building restrictions. From a decree for plaintiffs, defendant appeals.

Cross-appeals from Wayne; Shepherd, J., presiding. Bill by William E. Thompson against Patrick E. Hurson, Martha L. Hurson and others for an injunction, the cancellation of a deed and contract, and for an accounting. Defendants Hurson filed an answer and cross-bill for similar relief. From the decree rendered, plaintiff and defendants Hurson. appeal.

Case by Alma Brabon, administratrix of the estate of Jacob Lehman, deceased, against the Gladwin Light & Power Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.