Volume 202 — Michigan Reports

Error tp recorder’s court of Detroit;'Jeffries, J. Arthur Pretswell was convicted of manslaughter and sentenced to imprisonment for not less than two nor more than fifteen years in the State prison at Jackson.

<p>Error to Kent; Brown, J.</p> <p>Assumpsit by the State National Bank of Albuquerque against Otto H. L. Wernicke on a contract of guaranty. Judgment for defendant. Plaintiff brings error.</p>

Bill by Thomas W. Stapleton against Arthur B. Cornthwaite to set aside a sale and mortgage on the ground of fraud. From a decree for plaintiff, defendant appeals.

, presiding. Assumpsit by the city of Detroit against the Lake Superior Paper Company, Limited, for taxes. Judgment for plaintiff on a directed verdict. Defendant brings error. ■ Plaintiff brought the action to recover the amount of a tax it had levied upon defendant’s personal property.

Anna Anderson presented her claim for compensation against William McVannell for the accidental death of her son in defendant’s employ. From an order awarding compensation, defendant and the Travelers’ Insurance Company, insurer, bring certiorari.

Condemnation proceedings by the board of road commissioners of Oakland county against Pittmans & Dean Company for a strip of land for road purposes. From an order confirming the award of the commissioners, defendant brings certiorari.

, presiding. Mandamus by the city of Owosso to compel the Michigan United Railways Company and the Michigan Railway Company to relay certain tracks. From an order granting the writ] defendants bring certiorari.

<p>Error to Wayne; Mandell, J.</p> <p>Case by Annie E. Thomas against Frank E. Miller for fraud and deceit. Judgment for plaintiff. Defendant brings error.</p>

, presiding. Case in justice’s court by Althea C. Everhard against Dodge Brothers for damage to plaintiff’s automobile. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

Assumpsit by John L. Ortner against the Michigan Central Railroad Company and Henry W. Carr Company for the nondelivery of a carload of beans. Judgment for defendant railroad company on a directed verdict, whereupon suit was discontinued as to other defendant. Plaintiff brings error.

Charles Baase presented his claim for compensation against the Banner Coal Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Employers’ Liability Assurance Corporation, Limited, insurer, bring certiorari.

<p>New Trial — Ejectment—Limitation of Actions — Repeal of Statute — Saving Clause.</p> <p>The right to new trial in ejectment within three years after judgment, under section 10981, 3 Comp. Laws, repealed by section 30, chap. 29, of the judicature act (section 13197, 3 Comp. Laws 1915), was saved, where the right had accrued before the repealing act took effect, by section 9, chap. 9, of said act (section 12319, 3 Comp. Laws 1915), providing that rights in respect to limitation of actions or right of entry should be governed by the act under which they accrued.</p>

Assumpsit by the Thomas Canning Company against the Canners’ Exchange Subscribers at Warner Inter-Insurance Bureau and others on policies of insurance. From an order denying a motion to dismiss, defendants bring certiorari.

Assumpsit in justice’s court by the Patrons’ Mutual Fire Insurance Company, Limited, of Michigan, against Philip Goodman for assessments due on a policy of insurance. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

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

Mandamus by Lester Williams to compel E. J. Doane and others, drain commissioners of Ingham, Livingston, and Washtenaw counties, to dismiss proceedings for the establishment of a drain. From an order granting the writ, defendants bring certiorari.

Mike Lovalo presented his claim for compensation against the Michigan Stamping Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Royal Indemnity Company, insurer, bring certiorari.

Bill by Leroy Sutton and another against the village of Morenci to set aside condemnation proceedings. From a decree for defendant, plaintiffs appeal.

<p>1. Automobiles — Personal Injuries — Registration—Evidence oe Ownership.</p> <p>In an action for personal injuries caused by a collision between plaintiff’s motorcycle and an automobile, under 1 Comp. Laws 1915, chap. 89, requiring every automobile driven upon a public highway to be annually registered by and in the name of the owner, held, that proof of the license number upon the automobile and of the person in whose name such distinctive number is registered as owner, prima facie identifies both vehicle and ownership.</p> <p>2. Same — Master and Servant — Admission oe Driver.</p> <p>Evidence that defendant’s name was upon the motor vehicle which occasioned the injury, and the admission of the driver that it belonged to defendant, in whose employment he then was, might have warranted the inference that the relation of master and servant existed, in the absence of any explanation by defendant, and cast upon it a duty of explanation. Ostrander, C. J., dissenting on the admissibility of the admission of the driver.</p> <p>3. Same — Motor Vehicle Law — Presumptions—Prima Facie Case — Directed Verdict.</p> <p>A prima facie case having been made out by plaintiff under section 4825, 1 Comp. Laws 1915, declaring the owner of a motor vehicle liable for injury caused by its negligent operation unless driven without his consent or knowledge, and the innocence of the driver being presumed in view of section 15431, 3 Comp. Laws 1915, and Act No. 220, Pub. Acts 1917, making it a felony to take possession of and use a motor vehicle without authority, the court below was in error in directing a verdict for defendant.</p> <p>See notes in 23 L. R. A. (N. S.) 561; 25 L. R. A. (N. S.) 734; 35 L. R. A. (N. S.) 699; 41 L. R. A. (N. S.) 307; 45 L. R. A. (N. S.) 699; 52 L. R. A. (N. S.) 801; L. R. A. 1915D, 628; L. R. A. 1918A, 918.</p>

Catherine McKenna presented her claim for compensation against the New York Central Railroad Company for the accidental death of her son in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

, presiding. Bill by Lewis J. Selznick Enterprises, Incorporated, against the Harry I. Garson Productions and another for an accounting and for injunctive relief. From an order denying a motion to dismiss, defendants appeal.

, presiding. Bill by Lewis J. Selznick Enterprises, Incorporated, and another against the Harry I. Garson Productions for an accounting and for injunctive relief. From an order denying a motion to dismiss, defendant appeals.

<p>Attachment — Mandamus—Intervenees—Statutes.</p> <p>In mandamus proceedings to compel the circuit judge to set aside an order permitting the wife of defendant to intervene in a suit commenced against him, where property in the wife’s name was attached on the ground that defendant was attempting to conceal his property in this State for the purpose of defrauding his creditors, held, that the order should be modified allowing her to intervene as to the liability of the husband and the amount thereof, since the avowed purpose of the attachment case is ultimately to file a bill in aid of execution to subject the attached property to the payment of the judgment; but she may not intervene for the purpose of moving a dissolution of the attachment proceedings, because that would not be “in subordination to and in recognition of the propriety of the main proceeding,” under section 12362, 3 Comp. Laws 1915; nor may the question of fraud in the conveyance to her he determined. Ostrander, C. J., and Steere, Brooke, and Stone, JJ., dissenting in part.</p>

Frederick P. Hinckley presented a claim against the estate of Miar McLaughlin, deceased, for an amount due on an alleged note. The claim was disallowed by the commissioners and claimant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

Case by Katherine O’Brien against the Michigan Bonding & Surety Company and another under the civil-damage act for an illegal sale of liquor. Judgment for plaintiff. Defendants bring error.

Bill by Robert W. Dunn against Robert Papenfus to redeem from the sale of land delinquent for taxes. From a decree dismissing the bill, plaintiff appeals. Bill filed for permission to redeem, under the provision of Act No. 229, Pub. Acts 1897, and amendments thereto (1 Comp. Laws 1915, § 4138 et seq.), from tax titles. On March 2, 1892, Pack, Woods & Co. by deed conveyed the property in question to one Ida Farman.

Mike Malone presented his claim for compensation against the Detroit United Railway for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari. Certiorari to the industrial accident board. Claimant, a common laborer 34 years of age, was an employee of the respondent, the Detroit United Railway, in its track laying department.

Case by Emma C. Horning against Louis Peters & Company and others for breach of an alleged trust agreement. Judgment for defendants on a directed verdict. Plaintiff brings error. In this action plaintiff seeks to recover from defendants the sum of $9,500.

Assumpsit by Gertrude A. Sumerlin against the American Fraternal Stars on a policy of insurance. Judgment for defendant on a directed verdict. Plaintiff brings error. Plaintiff’s husband, Ambrose N. Sumerlin, held a policy of insurance upon his life in the defendant company, which, with its accumulations, amounted, at the time of his death, on January 8, 1917, to $745.80. This suit is brought by plaintiff as beneficiary under said policy to collect said sum.

Cross-appeals from Wayne; Codd, J. Bill by Louisa Biddle against William S. Biddle and others for the partition of real estate. The Detroit Trust Company, as trustee, was authorized to sell certain property. On default of payments, an option contract was declared forfeited: On petition parties were permitted to intervene claiming title to $15,000 paid as first payment on said contract. From the order determining the parties entitled to the fund, all parties appeal.

<p>Appeal from Kent; Brown, J.</p> <p>Bill by William M. Puffer and others, trustees of the Michigan Annual Conference of the Methodist Episcopal church, against Emily J. Clark and others, and the trustees of the M. J. Clark Memorial Home, for the transfer of title to land from plaintiff trustees to defendant trustees. From a decree for plaintiffs, defendants except defendant trustees appeal.</p> <p>For the administration of church affairs, the Methodist Episcopal church has conferences composed of all the ministers of the church resident in and performing functions as such ministers in particular districts. The Michigan conference is composed of the ministers resident in and performing their functions in that part of Michigan west of the principal meridian, numbering some 350 members. It meets annually, and is presided over by one of the bishops or general superintendents of the church, who annually appoints the members to their charges. The particular conference has been in existence for more than 75 years.</p> <p>Like other churches, the Methodist Episcopal church has considered and made some provision for the maintenance of ministers called sometimes superannuated, sometimes, conference charges, and the widows of deceased ministers and their children, and in this conference a fund has been accumulated for the purpose of pensioning them. In the year 1885, the fund and various properties held for that purpose had become so considerable that it was thought best to organize a corporate body to hold, administer, and further accumulate funds and property for this purpose, and at the 50th session of the conference, in September, 1885, at Grand Rapids, a certificate of incorporation of trustees of the conference was made pursuant to action of the conference and section 4656 et seq. of Howell’s Annotated Statutes (1st Ed. Vol. l),the certificate being acknowledged and recorded in the office of the county clerk of Kent county September 29, 1885. By this action, the trustees named in this certificate and their successors in office became a body corporate by the name of the Trustees of the Michigan Annual Conference of the Methodist Episcopal church. The value of the particular fund has increased, and in the year 1914, exclusive of certain special property in special funds, amounted to more than 8160,000, and superannuated. preachers and their widows, numbering more than 150, received annually pensions from the income of the fund and the collections gathered in churches in the conference for that purpose and from other sources.</p> <p>Bearing date August 23, 1915, acknowledged August 24th of the same year, a deed was made by Melvin J. Clark and Emily J. Clark, his wife, of Grand Rapids, parties of the first part, and the Trustees of the Michigan Annual Conference aforesaid, of the second part, in and by which the parties of the first part, “for and in consideration of their desire to aid said parties of the second part in their work and of the sum of one dollar, to them in hand paid by the said parties of the second part,” conveyed to the parties of the second part a parcel of land in the city of Grand Rapids, Michigan. Following the description of the real estate in the deed, is this language:</p> <p>“The foregoing conveyance is made upon the express condition that the above described lands and premises shall be forever maintained and used solely as a home for superannuated ministers of the Michigan Annual Conference of the Methodist Episcopal church and their wives and the widows of deceased ministers and such other needy and deserving persons as such parties of the second part may from time to time designate, the same to be named and known as the M. J. Clark Memorial Home, and in case the said premises, or any part thereof shall by the acts, consent or neglect of the said parties of the second part or their successors in office, cease to be used and maintained for the purposes aforesaid, or be used for any purpose inconsistent therewith, then the title to the above described lands shall revert unto and vest in the said parties of the first part, their heirs or assigns, and all rights of the said parties of the second part or their successors in office or assigns, in and unto the above described lands shall absolutely cease and end.”</p> <p>This is followed by the habendum and the covenants of the deed. The property described in this deed was some time the homestead of the grantors and donors, consisting of about 20 acres of land. The deed was duly recorded September 14, 1905. An agent of the church was placed in the field to collect funds for the maintenance of the home and to secure a permanent endowment for it, and property and endowments, not all of which is productive of income, have been contributed for its support and maintenance, valued, in real and personal property, at more than $83,000. Mr. Clark, during his lifetime, took a personal interest in the improvement of the property and expended therein considerable sums of money. Mrs. Clark has given $30,000 towards the erection of a home on the premises. A church building has been erected and several cottages. There were, originally, a large and substantial frame residence, and barns and other outbuildings. The real estate and buildings and improvements were regarded by the trustees in the year 1914 as worth from $75,000 to $100,000; aside from the superintendent’s family, servants and nurses, there were 30 inmates or members of the home. From $600 to $1,200 a year is the annual contribution made by the various charges in said conference toward the support and maintenance of the home and the ministers and their widows who constitute the membership.</p> <p>The administrative work connected with the business and management of the Clark property grew as the home grew. The conference determined that it was advisable and necessary that a separate board of trustees be created to administer this fund, and at the conference held at Battle Creek in September, 1913, the organization of a separate board of trustees for the said home, pursuant to Act No. 89, of the Public Acts of 1901 (3 Comp. Laws 1915, § 10904 et seq.), was authorized. This act provides that whenever a conference or other representative body of any religious denomination in this State,</p> <p>“may desire to create a corporate board' of trustees for any endowment fund or other property of the denomination represented by such body, it shall and may be lawful * * *. Thereafter such trustees and their successors in office shall be a body corporate and politic for the purposes in such statement specified”</p> <p>"Sec. 4. Such trustees may, in their corporate name, sue and be sued, and may take and hold in their corporate name all property, real and personal, devised, bequeathed, transferred or conveyed to them for the use and benefit of the religious denomination by whose representative body they are appointed. In the management and disposition of such property they shall be governed by the terms of the will, deed or other instrument by which such property shall be given to them, and subject to such terms, by the directions of the body by whom they were elected.”</p> <p>In section 5 is the provision:</p> <p>“Provided, however, That the said trustees shall neither sell, convey, mortgage nor lease for a longer period than three years, any real estate held by them as such trustees, unless duly authorized to do so by the presbytery, synod, conference, diocesan convention, or other representative body which appointed them. And in every case of sale, conveyance or incumbrance of real estate, said trustees shall cause to be filed in the office of the register of deeds in the county in which such real estate is situated, a copy of the acts of said presbytery, synod, conference, diocesan convention, or other representative body authorizing such sale, conveyance or incumbrance, duly certified by the secretary of said representative body to be a true copy of said proceedings and the whole thereof.” * * *</p> <p>The certificate of incorporation was executed September 19, 1913, was filed in the office of the secretary of State on October 2, 1913, and the conference elected a board of nine trustees, members of the church residing within the territorial limits of the conference to serve as trustees of the M. J. Clark Memorial Home, and to hold, control and manage the present and future property and affairs thereof. The conference further directed that a bill in equity be filed in a proceeding “to be carried on amicably,” to secure a decree of a court of competent jurisdiction permitting the trustees of the Michigan Annual Conference “to resign their trust as far as relates to the M. J. Clark Memorial Home,” permitting the new trustees to take over the property and assume the trust, declaring that the new corporation is regular and competent to assume it, providing that all notes and securities taken and contracts entered into by the old- trustees be ratified and confirmed, the old trustees discharged, directing the transfer of title from the old to the new trustees, and such other and further relief of a general character as might be equitable and proper. Pursuant to this action of' the conference, the bill in this cause was filed November 11, 1913. It is signed by William M. Puffer and others, trustees of the Michigan Annual Conference of the Methodist Episcopal church, by Swarthout & Master, their agents and solicitors. It is signed by Swarthout & Master, as solicitors for complainants and of counsel. It is verified by William M. Puffer. Exhibited with the bill is a copy of the deed hereinbefore referred to, of the resolution to which reference has been made, as well as a copy of the certificate of incorporation of the trustees of the M. J. Clark Memorial Home of the Michigan Annual Conference.</p> <p>Melvin J. Clark died November 23, 1909, testate, and when the bill in this cause was filed Frank Jewell, one of the legatees, was acting as the sole executor and trustee of the estate. His will made no mention of the property in question, but certain persons were named in said will as residuary legatees of said estate. It is charged in the bill of complaint that should the property revert these persons would be the sole beneficiaries of such reversion. One of the residuary legatees died before the filing of the bill, and her heirs and legatees are made parties to the suit.</p> <p>Some of the relief asked for is:</p> <p>“8. And that said residuary legatees of the estate of said Melvin J. Clark be by said decree forever barred from asserting or claiming that such transfer from complainants to said Trustees of the M. J. Clark Memorial Home real estate, covered by said deed, ‘Exhibit A/ has worked a forfeiture or a reversion of the property therein described to them as such residuary legatees, or otherwise, or from claiming that said home property, or any part thereof, has vested in them by reason of such transfer.</p> <p>“9. That said new corporation, to wit, the Trustees of the M. J. Clark Memorial Home, be appointed by the court as the trustees of all the property of every name and nature now belonging to or hereafter coming to or devolving upon said home, or complainants for the use and benefit of said ‘home; and that all of the conditions, agreements and trusts mentioned in said deed, from said Melvin J'. Clark and wife to complainants, be impressed upon the holding of said property by said new board of trustees; and that said new board of trustees be decreed to be subject to all of the conditions, trusts, obligations and requirements mentioned in said deed, or implied therein or thereby; and that said new board of trustees be decreed to be the grantee in said deed, subject to all of the trusts, conditions and requirements stated or implied in said deed.”</p> <p>Some of the numerous defendants were personally served with process, some were brought in by publication. As to some the bill of complaint was taken as confessed without appearance or answer. Seven of those made defendants filed an answer and claimed affirmative relief, charging that the trust attempted to be created in the original deed executed by Mr. Clark was void and that the title to the land did not pass to the trustees, plaintiffs, and that the property was owned by Mr. Clark until his death, when title thereto passed to these answering defendants and others by his will. It was set up, also, that because the deed is of record it is a cloud upon the title of defendants and tends to depreciate the value of their title and the sale of it, and they ask to have the said deed declared to be void and delivered up to be canceled. These defendants appear by P. H. Walsh, who signed the answer, filed January 28,1914, as agent and solicitor for defendants. If, upon the filing of this answer and cross-bill, a subpoena was issued, it was not served upon the appellants, nor did they, or any of them, answer said cross-bill.</p> <p>Such other proceedings were taken that certain infant defendants, viz.: Melvin J. Clark, Jr., Esther French and Geneva French, .were represented by guardians, Esther L. Robinson being appointed guardian for the two Frenches, and the register of the court appointed guardian for Melvin J. Clark, Jr. The French minors by their guardian filed an answer, which is substantially a copy of the answer and cross-bill already referred to and is signed by P. H. Walsh as agent and solicitor, and the register of the court made the formal guardian’s answer, submitting the infant’s rights and interests to the protection of the court.</p> <p>The trustees of the M. J. Clark Memorial Home answered the original bill (one of these is Emily J. Clark, widow of M. J. Clark), and they admit that the plaintiffs are entitled to the relief prayed for in their bill of complaint, the answer containing, among other things, the following:</p> <p>“And these defendants here now go on record as being willing to accept the trust sought to be imposed upon them by the action of said annual conference; and sought to be confirmed in this proceeding; and agree to perform and carry out the trust imposed by said Clark deed according to its true intent and meaning;” etc.</p> <p>They further answer:</p> <p>“These defendants further say, on information and belief, that the terms and provisions in said deed were in accordance with the true purpose and intent of said Clark and wife in conveying said property; and that this was well known to all of his heirs. That since the filing of said bill of complaint, and the cross-bill of the defendants, Sherman Robinson, Sarah A. Cole, Esther L. Robinson, James French, Otto French, Emily Heiss, and the separate cross-bill of the defendants Esther French and Geneva French, by their guardian ad litem, Esther L. Robinson, these defendants have asked all .of the remaining eleven residuary legatees mentioned in said Clark’s will, namely, Emily J, Clark, Marguerite S. Clark-Wurzburg, Edward Clark, Melvin J. Clark, Jr., Edith E. Clark-Sligh, Josephine Clark-Bowen, Gertrude L. Holcomb-Partridge, Irving M. Clark and Lelaijd J. Clark, to give these defendants a quitclaim deed of the premises described in said deed from Melvin J. Clark and Emily J. Clark to the complainants. And these defendants say that all of said eleven other residuary legatees — with the wives of those male members of that class who are married— have executed quitclaim deeds to those defendants of said premises. And these defendants will produce the same in evidence on the trial of this case, and make reference to the same for greater certainty. They further say that the rights and interests of innocent parties have intervened since said property was taken over and has been under the control of the complainants, in reliance on said deed. And these defendants say that if the said court should hold that said deed was irregularly drawn — as claimed by said contesting defendants — that then this court should decree a reformation of said deed and a cancellation of said obnoxious clause. And these defendants ask that this be done accordingly.</p> <p>“And these defendants will conform to, abide by and perform such decree in the premises as the court shall seem meet.”</p> <p>This answer is signed by the trustees, by Swarthout & Master, “their agents and solicitors,” except as to Mr. Skillman, and by Grant Sims, solicitor and of counsel for defendants.</p> <p>To the said cross-bill of Sherman Robinson and others, plaintiffs filed a demurrer and answer. Among others, grounds of demurrer stated are:</p> <p>“VI, Because it appears that the purpose and object of said bill of complaint is a transfer of trust imposed by said deed, and other trusts that have grown up as a result and by reason of said conveyance, from the complainants to the newly formed corporation known as the trustees of the M. J. Clark Memorial Home, and permitting said last mentioned body to assume said trusts, and confirming them in so doing, and to discharge the complainants from their responsibilities under said deed and in connection with said trusts, and to authorize complainants to make a conveyance accordingly, and that such conveyance be confirmed; and that the residuary legatees be barred by the decree of said court from questioning the regularity of said transfer of trusts. Whereas the matters suggested and the relief claimed in said cross-bill, and particularly in paragraphs VIII, X, and XI thereof, do not grow out of the original bill and are not contained in it, and therefore are not the subject of a cross-bill.</p> <p>“VII. Because said cross-bill introduces other distinct matters from those involved in the original bill —matters which said answering defendants could not have maintained in an original bill for the same purpose. Said subject matter cannot therefore be intro-. duced in this cross-bill.</p> <p>“VIII. Because said cross-bill introduces other matters distinct from those involved in the original bill, and therefore becomes and is an original bill, as in a separate suit; it is therefore necessary that a subpoena should be issued and served on all of the parties to this suit, against whom any relief is sought.</p> <p>“IX. It is stated in the cross-bill that the trust created by said deed is void because it is not fully expressed and clearly defined and the beneficiaries are too uncertain; and that said deed runs counter to the statute against perpetuities. Whereas it appears by said cross-bill that said deed was executed and delivered on or about August 28, 1905, and that complainants went into possession thereunder September 14, 1905, and have continued in possession thereunder since that date; and that said Melvin J. Clark died on or about November 23,1909, leaving a last will and testament which did not refer at all to the property described in and conveyed by said deed. And whereas, by Act No. 122, Public Acts of 1907, which law went into effect September 28, 1907, the legislature of the State of Michigan enacted that no gift to religious, charitable, or benevolent uses shall be invalid by reason of the indefiniteness or uncertainty as to the persons designated as the beneficiaries stated therein in the instrument creating the same, or by reason of the same contravening any statute or rule against perpetuities ; and if a trustee is named in the instrument creating such gift, the legal title shall vest in such trustee. Said act applies, to trusts created by a deed, under which the title had vested in said trustee prior to the adoption of said act, in cases where the grantor lived, as did M. J. Clark, for the space of more than two years after the said act became operative, and no suit or action had been commenced attacking the validity of said deed during the grantor’s lifetime.”</p> <p>With reference to the original deed of the Clarks, it is said, and this is put out as a ground of demurrer:</p> <p>“XXII. Because, by section 8828 and chapter 238 of the Compiled Laws of the State of Michigan [3 Comp. Laws 1915, § 11564, and chap. 221] said deed conveyed a title in fee simple to complainants, and said so-called reversionary clause in said deed, and the so-called trust clause in said deed are void and of no force and effect.</p> <p>“XXIII. Because the clause in said deed seeking to qualify the use of said premises, and against alienating the same, and providing for a reversion of the premises if on account of the acts, consent, or neglect of the grantors the premises should cease to be used or maintained as such home, is a conditional clause merely nominal in scope, not favored by the law and valid under the law.”</p> <p>In answer to said cross-bill, they say, among other things:</p> <p>“Complainants deny that said Clarks had no intention of conveying said property to complainants for their sole use and benefit; on the contrary these complainants aver that under the statute of the State of Michigan and the decision of our court, the legal intent of said conveyance is to transfer to the complainants the title in fee simple to said premises, unencumbered by any reversionary clause or uncertain trust. And the said so-called trust clause in said deed is nothing more than a nominal condition, and is invalid, and does not modify the granting clause in said deed. They deny that said trust and deed have failed; and that therefore the estate attempted to be conveyed thereby must be regarded as belonging to the estate of Melvin J. Clark. On the contrary, they aver that the premises covered by said deed belong to complainants, and that the title thereof should be transferred by the decree of this court to said new corporation known as the Trustees of the M. J. Clark Memorial Home, as prayed in said bill.”</p> <p>This pleading is signed by the plaintiffs, by Swarthout & Master, their agents and solicitors. Upon the pleadings, to this point in the proceedings, no other counsel than those mentioned appear for any of the parties.</p> <p>The cause came on for hearing in open court on the fourth day of September, 1914. A decree providing for a change of trustee, as. prayed for, was made on the 14th, filed on the 17th, of September, 1914, containing, among other things, a provision:</p> <p>“That all of the legal conditions, agreements and trusts mentioned in said Clark deed, be impressed upon the holding of said property by said new trustees; and that said new trustees be decreed to be subject to all of the legal conditions, trusts, obligations and requirements mentioned in said deed, or implied therein or thereby; and that said new board of trustees be decreed to be the grantee in said deed, subject to all of the legal trusts, conditions and requirements stated or implied in said deed. * * :p</p> <p>“It is further ordered, adjudged and decreed that the clause in said deed as follows: ‘The foregoing conveyance is made upon the express condition that the above described lands and premises shall be forever maintained and used solely as a home for superannuated ministers of the Michigan Annual Conference of the Methodist Episcopal church, and their wives, and the widows of deceased ministers, and such other needy and deserving persons as said parties of the second part may from time to time designate/ is a conditional clause relating to a grant directly in line with the general purposes contemplated by complainants’ organization, and does not take away from the grantees in said deed, or their successors, the power of alienation; and that the trust sought to be created by the grantors in said deed is a charitable trust; and that such trust is fully expressed and clearly defined upon the face of the instrument creating it.”</p> <p>Nine defendants, of whom Emily J. Clark, the widow of Melvin J. Clark, was one, made a motion for rehearing November 11, 1914, and for leave to file an answer and cross-bill, and to introduce proofs on such terms as the court may impose. This petition is signed by Butterfield & Keeney, solicitors for petitioning defendants. It refers to those portions of the decree to which special attention has been called, says that the decree has not been entered nor any notice thereof been given to petitioners, that the decree is broader than and not warranted by the bill of complaint, was irregularly and improperly granted,</p> <p>“and was a fraudulént attempt to deprive these petitioners of their rights under said deed, and that such decree should be set aside not only because no basis for such decree is laid in the previous proceedings in said bill of complaint, and no power existed in the court to make such decree, but because the same was fraudulently procured; that your petitioners immediately on learning of the fact caused application to be made to the attorney representing the defendant in the drawing of said decree, for a modification of the same, and for an alteration therein, so as to make the same conform to the prayer of the bill of complaint; that at first, as your petitioners are advised and believe, he agreed so to do, but that afterwards he refused to comply with the reasonable request of your petitioner in that regard; that the delay which occurred since the making of said decree has resulted from negotiations between the parties to endeavor to induce them to recognize the rights of your petitioners, and that such negotiations were accompanied with the express agreement that nothing should be lost as to their right to appeal to this court by reason of such delay.”</p> <p>The plaintiffs answered the petition. Certain affidavits and correspondence were brought to the attention of the court. January 14, 1915, a petition for rehearing was filed by two other defendants, Butterfield & Keeney appearing as their solicitors. This was also answered by the plaintiffs. The court denied the petitions for rehearing. Time to appeal from the decree was extended from time to time, and time was also given to appeal from the order denying the petitions for rehearing. Under date September 4, 1915, a consent in writing was filed, signed by Swarthout & Master, that Charles E. Ward be substituted for them as solicitor for the plaintiffs. Upon the same paper and a part of it, is the following: “And I hereby appear accordingly. Chas. E. Ward.” Finally, a stipulation, dated September 14, 1915, filed September 15, 1915, entitled in the cause, was made by Mr. Ward, Swarthout & Master, as solicitors for complainants, and Butterfield & Keeney, solicitors for defendants, upon which stipulation an order was made extending the time to perfect the appeal. It was followed by another stipulation to the same effect, and finally an application was made to a Justice of this court for an order extending the time within which to perfect an appeal, and an order was entered extending the time, the action of the said Justice being based upon a stipulation entitled in the cause, reading:</p> <p>“It is hereby stipulated by and between the above-named parties through their respective solicitors, that the time to appeal from the final decree entered in the above entitled cause on the 17th day of September, 1914, shall be extended for six months from the 17th day of September, 1915, and that the time to appeal from the orders denying a rehearing made on the 23d day of December, 1914, and on the 25th day of January, 1915, shall be extended for six months from the 23d day of December, 1915, and that an order may be made and entered to that effect.</p> <p>“This stipulation is based upon the fact that the solicitors for the defendants have been prevented from perfecting an appeal within the statutory period on account of circumstances beyond their control.</p> <p>“Dated January 8, 1916.</p> <p>“Chas. E. Ward,</p> <p>“Solicitor for Complainants.</p> <p>“Butterfield & Keeney,</p> <p>“Solicitors for Defendants.”</p> <p>Within the time so allowed, the appeals were perfected. A motion was made in this court by the trustees of the M. J. Clark Memorial Home to dismiss the appeals, which motion was set down to be argued with the principal cause. It is said, and is true, that appellants neither appeared nor were represented by counsel at the hearing in the circuit court, and without seeking to set aside their defaults, and without tendering an answer, they have appealed. It is pointed out that of the appealing defendants one, Melvin J. Clark, Jr., an infant, filed a guardian’s answer, and the others, Emily J. Clark, Marguerite S. Wurzburg, Sara A. Clark, Frank Clark, Edith C. Sligh, Gertrude S. Partridge, Irving M. Clark, Josephine Bowen, Leland J. Clark, have been defaulted, Partridge, Leland J. and Irving M. Clark, after being brought in by publication, and all of them have by quitclaim deed conveyed whatever interest they had in the premises to the trustees of the M. J. Clark Memorial Home. It is said the final decree was made September 14, 1914, and entered September 17,1914; that unless the stipulation filed in the Supreme Court, signed by Mr. Ward and Butterfield & Keeney, is considered a special motion and a proper showing sufficient to satisfy the statute, the court is without jurisdiction in the premises. Section 20, chapter 50, judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 13755]). In this connection it is. said the solicitor for the trustees of the M. J. Clark Memorial Home did not sign the stipulation presented to the Justice who extended the time for taking the appeal and that no notice of said application for extension of time was given to the solicitor for said trustees. It is said that section 496, 1 Comp. Laws (4 How. Stat. [2d Ed.] § 12014; 3 Comp. Laws 1915, § 12656), is not applicable except in cases where the bill shall have been filed for the satisfaction or payment of any sum of money, etc.</p> <p>Counsel for the appellants say that pursuant to the order of this court the appeals, were perfected and that the defendant trustees seek to dismiss the appeals without vacating, or seeking to vacate, the order.</p> <p>Upon the • merits, appellants say that the original bill plainly seeks, and the directions from the church conference authorized the plaintiffs only to seek, a shifting of the burden of the admitted trust to a new trustee, the deed of the property being treated as valid, the trust as existing and the reversionary provision in the deed as valid — at any rate, as not questioned. This being the purpose of the suit, and this purpose being agreeable to them, there was no occasion for them to appear or answer the bill, the facts charged therein being true and the relief sought therein being by them regarded as proper relief. They say further that when by the answer and cross-bill of certain defendants an attack was made upon the deed made by the Clarks of the property in question they were anxious and willing to in any proper way secure in the new trustees precisely the title and right which by the original deed was conveyed by the Clarks to plaintiffs, and, being advised that their quitclaim deeds would accomplish the purpose, executed them with no idea or belief that by so doing the new trustees would take any other or different title or interest than plaintiffs had. They say that paragraphs XV and XVII of the decree, hereinbefore set out, to which they make objections, are not warranted by the bill or by any pleadings in the suit, and upon learning that the decree contained them they immediately protested, and they assert the right to appeal therefrom, although they neither appeared nor answered the bill of complaint.</p> <p>The plaintiffs, answering the petition for a rehearing, appear by Swarthout & Master, who sign for them as their agents and solicitors, and as their solicitors sign the answer. The petition (paragraph 8) says:</p> <p>“There was in said bill no prayer nor any suggestion whatever that it was the purpose of said suit to procure a decree of this court authorizing the defendants, or any party thereto, to sell or dispose of said property or. to ask the court for any decree which would permit them to hold said property free from the condition of said deed.”</p> <p>To this, plaintiffs answer:</p> <p>“Answering paragraph 8, complainants submit to the court the question of its legal meaning. They aver, however, that after said bill was filed and most of the defendants served with subpoena, certain of the defendants, representing 4/15ths interest of the residuum of said estate, appeared by counsel; and in their answer to said bill, averred that the paragraph contained in said deed, which is copied in paragraph 2 of said petition for rehearing, ‘Was and is void and therefore the purpose of the transaction having failed, the title of the said lands did not pass to the said trustees but said property was owned by Melvin J. Clark until his death, November 23d, 1909, and passed to these defendants and the other heirs by his will/ They further alleged in said answer ‘the truth to be that as the purpose of the trust was void, the deed was void and therefore there was no reversion interest created.’ They further averred in said answer ‘that the trust created by said deed is void because it is not fully expressed and clearly defined and the beneficiaries are too uncertain and is against the statute against perpetuities.’ Said answer was. in the nature of a cross-bill; and it was alleged that inasmuch as said deed had been recorded it was ‘a cloud upon the title of these defendants in said premises.’ The complainants were required to make answer to said cross-bill; and the prayer of said cross-bill was that said deed may be set aside and declared void as against these defendants as a cloud upon their title and that the deed should be delivered up to be canceled. There also was a prayer for general relief.”</p> <p>The answer to the petition for rehearing contains, also, the following:</p> <p>“XI. Complainants admit that said Butterfield, representing some of the petitioners, prepared and submitted to the new board of trustees of said Clark Home a form of declaration of trust, covering said premises. Said proposed declaration incorporated, in haec verba, the exact terms found in the original Clark deed and which caused the unfortunate litigation referred to in this answer; and also a clause that if said trust was not conducted according to such conditions, that then the property should revert, or that at least ll/15ths (the amount represented by petitioners) should revert to them. This document was received by the business committee (which had in charge said litigation), and given thorough and careful consideration. It was understood that this committee should make a report in writing on the subject to said board of trustees. And accordingly a full report was prepared, and signed by all. of the members of the committee, and presented to a special meeting of said new board of trustees, held at Mrs. Clark’s residence, and attended by the entire board. Mr. Butterfield, counsel for Mrs. Clark, was also in attendance. The said report is as follows:</p> <p>‘“Grand Rapids, Mich., October 19, 1914.</p> <p>“ ‘To the Trustees of the M. J. Clark Memorial Home:</p> <p>“‘Your business committee respectfully report that they have examined the attached declaration of trust prepared by Messrs. Butterfield & Keeney, attorneys for the M. J. Clark estate, which they ask our board to execute.</p> <p>“ ‘While this committee is loth to refuse its assent to any request which the Clark heirs may make, yet in justice to the position we have maintained in conducting the chancery suit recently determined in the Kent circuit court in favor of the home and 'having in mind the ultimate good of the home, we have concluded that it is not advisable to execute this agreement; and for the following and other reasons:</p> <p>“ ‘Legal Reasons.</p> <p>“ ‘In the chancery case it was contended (and numerous Michigan precedents and cases from other jurisdictions were cited in support) that it was intended by the Clark deed to create a “charitable trust” — a trust not recognized in Michigan; and that our law made no distinction in favor of charitable trusts; and that a trust violating the statute against perpetuities and not specifically naming the beneficiaries was void; and the property reverted to the heirs of the grantors.</p> <p>“ ‘Judge Brown in substance held that whether the Clark deed created a charitable trust, or the clause was considered a condition in the deed — the .evidence in the case established that the contesting defendants are now estopped from attacking the deed.</p> <p>“ ‘We are advised and we believe that the execution of this declaration of trust might open anew for future litigation practically all of the issues determined in the chancery suit— and free from the defense of estoppel. There are three minor * heirs among the residuary legatees under the Clark will.</p> <p>‘“Business Reasons.</p> <p>“ ‘As a business proposition it is clearly inadvisable to tie up the power of alienation. The twenty acres is more ground than can be used for home purposes. Five, or, at most, ten acres is all that the home would be justified in keeping. The old people cannot use it for a park. The last five years has proven that the kind of people who will avail themselves of the privileges of this home cannot walk about the ground or use it as a park. Not more than a half dozen of the present thirty odd inmates are able to walk to the Clark church — which is only about 200 feet from the home building. To use the ground as a farm— located as it is in a rapidly growing quarter of our city — is foolish and wasteful. A superintendent’s time can be employed to better advantage than attempting to make a farm out of a few tillable acres.</p> <p>•“‘But, more to the purpose, we submit that the home with its present slender productive endowment (less than $25,000) cannot afford to keep (say) the south half of the premises, even as a gift. Already we hear the people thereabouts are asking that an east and west street be opened through the center of the grounds. We shall have to pay the expense. Other streets will have to- come in time, as the piece of ground is as large as the space between Cherry and Wealthy, and Henry and Union streets. We have had to pay, or beg off, something like $2,000 of sewer taxes already. These will be coming all the time. Franklin street will soon be improved, as the street railway is about' to build an extension on that street east to the lake. The street will have to be paved. Two blocks of pavement with the necessary cement walks will cost us several thousand dollars. There will be sewer and water main assessments accompanying this improvement. Similar expenses will attach to the improvement of the streets on the east and west side of the property, as well as all streets opened up within the property.</p> <p>“ ‘When your special committee, appointed a year ago last summer, took an inventory of the assets and liabilities of the home, so as to know whether a new board of trustees would be justified in assuming the trust of conducting the home, they found — and so reported to the joint boards on September 9, 1913 ■ — that it would take $1,276 per year extra or additional income from what was then in sight, for the then succeeding six years simply to carry out the contracts for life support under which the board was then laboring. The condition is no better today, since the endowment has not been materially increased. We believe that it will take nearly, if not quite, an average of $1,000 per year for the next ten years simply to carry this south ten acres — with absolutely no return from it. And this in face of the fact that the general expenses of the home are constantly increasing.</p> <p>“ ‘In our judgment the home will be far better off ten, twenty, or fifty years hence without this land than it will be to have it saddled on our shoulders cinched with this reversionary clause.</p> <p>“‘It would be much better if the land were dedicated to the public for park purposes, and the city thus bound to stand the expense of upkeep and development.</p> <p>“ ‘Recommendations.</p> <p>“‘This committee therefore recommend:</p> <p>“'(a) That the proposed declaration of trust be respectfully declined.</p> <p>“‘(6) That if the Clark heirs are not satisfied to allow matters to stand as they now are — the present board of trustees being under the control of the chancellor and subject to proceedings for contempt as well as personal liability if they should misappropriate any of these trust funds; the board being elected by and amenable to the Michigan Conference, and every trustee pledged to promote the best interests of the home — that then the trustees convey by quit claim to Mrs. M. J. Clark the entire twenty acres, and leave it to her to make such conveyance back as she may be advised, and as may be acceptable to the trustees, under a trust which will unquestionably have the protection of the statute of 1907.</p> <p>“‘(c) Or, in case neither of the foregoing recommendations is acceptable to Mrs. Clark and the other heirs, that then we convey to Mrs. Clark all the south ten acres absolutely — it being understood that it will be inadvisable for the trustees to have and hold the same and pay the attendant expense, with the reversionary clause tacked onto the tenure.</p> <p>“ ‘We do not believe — as a straight matter of good business (horse) sense — this new board of trustees would be justified in the minds of our successors or by future generations, in doing otherwise.</p> <p>“ ‘Elvin Swarthotjt,</p> <p>“ ‘ J. C. Floyd,</p> <p>“‘K. L. Skillman,</p> <p>“ ‘Anna Bissell’.</p> <p>“A motion was made and seconded thereupon to adopt the report. After an extended discussion, occupying most of an afternoon, a substitute motion was made that the board execute the proposed declaration of trust. A vote was taken and stood three for the substitute motion to four against it, the president and one other member not voting. The president .then asked that he might be recorded in favor of the substitute motion; and the motion was declared lost. The member who did' not vote (Mr. Gulliford) then said he was not prepared to vote upon the subject and asked that its further consideration be postponed. Thereupon a motion was made to the effect that further consideration of the matter be postponed, and this motion carried. The petitioners asked for a rehearing in this matter before any further or other meeting of said board had been called or held. In this connection, complainants are advised that by section 5 of Act No. 89 of the Public Acts of 1901— under which said new board of trustees is incorporated — the said trustees cannot sell, convey, mortgage or lease (for more than three years) any real estate held by them as such trustees unless they have been duly authorized to do so by the Michigan Annual Conference, and in case of sale, conveyance, or incumbrance said trustees must cause to be filed in the office of the register of deeds in the county where the land is situated, a copy of the acts of said conference authorizing such sale or conveyance or incumbrance duly certified by the secretary thereof to be a true copy of the said proceedings. Said conference will not again be in session until September, 1915. The complainants deny that the getting of said deeds was a fraud upon the petitioners; and aver that the giving of them was suggested by their own counsel; they deny that said deeds are without consideration; and they deny that they or any one for them made any false representation relative to the purport of said deed at any time.”</p> <p>It has been stated that the motion for rehearing was denied. It may be stated that to the approval of the bond on appeal plaintiffs objected:</p> <p>“1. Because said defendants are not entitled to prosecute an appeal.</p> <p>“2. Because said defendants neither answered nor appeared at any stage of the cause for the purpose of contesting any step taken against them; and to allow an appeal would be making the appellate court a court of original jurisdiction.</p> <p>“3. Because the defaults of said defendants for their respective nonappearances in said cause have not been opened up or set aside.</p> <p>“4. Because no answer, showing a meritorious defense, nor any defense whatever, has been tendered or filed by the said defendants.</p> <p>“5. Because the record in said cause discloses that none of the said defendants has any interest in the subject matter of said suit; that while they may have been interested at the commencement thereof, such interest, if any, has determined, that in and by the quitclaim deeds in evidence herein, said defendants, after the commencement of the action, and prior to the filing of the motion, assigned and alienated any and all interest they may at any time theretofore have had in a,nd to the subject-matter of said suit.”</p> <p>In this court, there is a brief for the appellants, signed by Butterfield & Keeney, one for the trustees of the M. J: Clark Memorial Home, signed by Grant Sims and Sheridan F. Master, and one for the plaintiffs, consisting of the following:</p> <p>“In this cause I have been advised by my clients that they do not desire me to contest in this court the position taken by Emily J. Clark and her associate appellants. For that reason I have filed no brief in this cause in this court.</p> <p>(Signed) “Chas. E. Ward,</p> <p>“Solicitor for Complainants.”</p>

Assumpsit in justice’s court by Frank J. Goodsole against Samuel Jeffery for rent. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

, presiding. Case by Charles Anderson, an infant, by his next friend, against the Newport Mining Company for personal injuries. Judgment for defendant non obstante veredicto. Plaintiff brings error.

Case by William L. Denton and another, copartners as W. L. Denton & Son, against Arthur Booth and others for the conversion of certain horses. Judgment for plaintiffs. Defendants bring error. The plaintiffs in this case were copartners- doing business under the firm name of W. L. Denton & Son and so described themselves in the declaration. Defendants are likewise copartners. Both plaintiffs and defendants were engaged in the buying and selling of horses.

, presiding. Bill by George W. Toles against the Duplex Power Car Company for the specific performance of a contract for the sale of corporate stock. From a decree dismissing the bill, plaintiff appeals.

, presiding. Assumpsit in justice’s court by Fred L. Stevens against Herman Venema on an alleged promissory note. There was judgment for defendant, and plaintiff appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.

, presiding. Bill by Frederick E. George against Mary Schuman for the specific performance of a land contract. From a decree for plaintiff, defendant appeals.

Case by Solomon G. Paperno, administrator of the estate of Alexander Bichek, deceased, against the Michigan Railway Engineering Company for the negligent killing of plaintiffs intestate. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by Hoover Holton and another against the Monarch Motor Car Company for breach of a contract of agency. Judgment for plaintiffs. Defendant brings error.

Case by Edward Brown against the Michigan Railway Company and another for personal injuries. Judgment for defendants on a directed verdict. Plaintiff brings error.

, presiding. Bill by Oliver H. Lau against Mary P. McKechnie for the specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.

Replevin by Charles Kert against Harry H. Endelman for the posséssion of certain hay. Judgment for plaintiff on a directed verdict. Defendant brings error.

Assumpsit in justice’s court by William J. Hanley against William E. Gowan and another on a promissory note. There was judgment for plaintiff, and defendants appealed to the circuit court. Judgment for plaintiff non obstante veredicto. Defendants bring error.

Case by Anna Harmon and another against the Michigan United Traction Company for failure to deliver certain freight. Judgment- for defendant non obstante veredicto. Plaintiffs bring error.

<p>Error to Hillsdale; Chester, J.</p> <p>Case by Peter Cascarelli against the New York Central Railroad Company for damages to bananas in transit. Judgment for plaintiff. Defendant brings error.</p>

Clair; Law, J. Bill by William I. Lashbrook and others against Charles R. Ferguson for the discharge of a mortgage. From a decree for plaintiffs, defendant appeals.

Case by Belle Calvert against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.

Bill by George W. Sickles against Frederick Schaen and another for the foreclosure of certain mortgages. From a decree for plaintiff, defendants appeal.

Assumpsit by John Klas against the Pearce Hardware & Furniture Company for work and labor. Judgment for defendant on a directed verdict. Plaintiff brings error.

, presiding. Case by Helen A. Block, an infant, by next friend, against the Ann Arbor Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.

Assumpsit by the Vulcanized Products Company against Charles H. Bender and others to enforce the statutory liability of the directors for failure to file the annual report of the Diamond Steel Truck Company. Judgment for defendants. Plaintiff brings error. Between July 15, 1912, and September 5; 1912, the plaintiff sold to the Diamond Steel Truck Company goods to the value of $1,358.84. The fiscal year of the Diamond Steel Truck Company expired on June 30th of each year.

Clair; Tappan, J. Assumpsit by Burt K. Block, doing business as the Empire Distillery Company, against William II. S. Taylor on certain promissory notes. Judgment for defendant. Plaintiff brings error. In this case plaintiff sued to recover from defendant on ten promissory notes for $100 each, amounting with interest, at the time of the trial, to $1,207.20.

Bill by Alexander H. Pearson against Edd Gardner and another for the specific performance of a land contract. Prom a decree for plaintiff, defendants appeal.

Case by Alfred Heino, administrator of the estate of Roy Heino, deceased, against the city of Grand Rapids for the alleged negligent drowning of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

Aaral A. Riker was convicted of violating the local option law, and sentenced to pay a fine of $150 and to imprisonment for 120 days in the Detroit house of correction. Defendant was convicted of violating the local option law (2 Comp. Laws 1915, § 7080 et seq.). Sentence having been pronounced, he brings the case here by writ of error. He conducted a grocery and drug store in the city of Flint where the local option law was in force.

Assumpsit by Joseph S. Courtney, trustee in bankruptcy of the Groveland Mining Company, against George W. Youngs for an assessment upon certain shares of corporate stock. Judgment for plaintiff. Defendant brings error. The Groveland Mining Company filed its articles of association in the office of the secretary of State August 5, 1907.

, presiding. Bill by Marcelena Watson against William F. Wagner, Julia P. Hart and others for the cancellation of an assignment of a land contract on the ground of fraud, and for an accounting. From an order dismissing the bill as to defendant Hart, plaintiff appeals. The facts alleged in the bill and supplemental bill are somewhat complicated.

, presiding. Thomas T. Leete, Jr., administrator of the estate of William H. Van. Syckle, deceased, filed a petition in the probate court for license to sell certain real estate for the purpose of paying debts. From an order granting the petition, Paul C. Renaud and another, owners of the interests of the widow and surviving son of deceased, appealed to the circuit court. Judgment overruling the order of the probate court. The administrator brings error.

Gladys E. McMinn presented her claim for compensation against the C. Kern Brewing Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Michigan Workmen’s Compensátion Mutual Insurance Company, insurer, bring certiorari.

<p>Appeal from Chippewa; Fead, J.</p> <p>Bill by Maybell Leslie Cracknell Calhoun against Sarah Jane Cracknell for the construction of a will. From a decree dismissing the bill, plaintiff appeals.</p>

Error-to Genesee; Stevens, J. Assumpsit by the city of Flint against Richard Heystek and Cornelius Vander Vliet, copartners as Heystek & Vander Vliet, as principals, and the Chicago Bonding & Surety Company, as surety, on a statutory bond. Judgment for plaintiff on a directed verdict. Defendant surety company'brings error.

Frank Henry was convicted of larceny, and sentenced to imprisonment for not less than 6 months nor more than 5 ^ears in the Detroit house of correction.

Case-made from Muskegon; Vanderwerp, J. Case by Willis E. Whitman against William J. Branstrom and others for false imprisonment. Judgment for defendants on a directed verdict. Plaintiff appeals.

, presiding. Mandamus by the Detroit Land Contract Company to compel William H. Green, treasurer of Wayne county, to accept a sum as payment of a mortgage tax, and to issue a certificate showing the amount secured. From an order granting the writ, defendant brings certiorari.

<p>1. Municipal Corporations — Detroit Charter — Powers — Ordinances — Junk Dealers.</p> <p>The common, council of the city of Detroit, under the police power conferred by its charter, has the power to license and regulate wholesale junk dealers.</p> <p>2. Same.</p> <p>The provisions of an ordinance of the city of Detroit “to license and regulate the business of junk dealers,” held, to include all who buy junk, whether at wholesale or piecemeal, and whether it is the main business or merely incidental.</p> <p>3. Same — Validity.</p> <p>The provision in the ordinance prohibiting the sale of any article until the same has been in the dealer’s possession at least five full days, held, not to be such an unreasonable and arbitrary interference with the dealer’s business as to require the court to declare it void, although loss might be occasioned by reason of variance in price during the five days.</p> <p>See notes in 32 L. R. 116; 24 L. R. A. (N. S.) 1168.</p>

Bill by Merton P. Bromeling against Mary A. Bromeling and another to set aside certain deeds. From a decree for plaintiff, defendant Bromeling appeals. The plaintiff, who was the nephew of Philamon K. Bromeling and Adelia E. Bromeling, his wife, was adopted by them on September 4, 1873, when he was five years of age. He had inherited, with his brother, George Pettit, 40 acres of land from his mother.

, presiding. Replevin in justice’s court by Mathew A. Young against Andrew T. Phillips and another for the possession of an automobile. There was judgment for defendants, and plaintiff appealed to the circuit court. Judgment for defendants. Plaintiff brings error.

<p>Error to Wayne; Mandell, J.</p> <p>Ejectment by David W. Simons against Frank E. McCormick and others. Judgment for defendants. Plaintiff brings error.</p>

Case by Annie R. Hickey, administratrix of the estate of John P. Hickey, deceased, against the Detroit United Railway for the negligent killing of plaintiffs decedent. Judgment for plaintiff. Defendant brings error.

<p>1. Criminal Law — Trial—Argument oe Counsel.</p> <p>In a prosecution for adultery, where the defense was an alibi, the defendant claiming to have been in New York city, at the home of his sister, at the time the offense was alleged to have occurred, where the court excluded testimony offered to explain the absence of defendant’s sister, it was reversible error for the prosecuting attorney, in his closing argument to the jury, to comment upon the failure of defendant to have his sister in court, and to insist that the failure to produce the witness in itself should be sufficient for the jury to find defendant guilty.</p> <p>2. Evidence — Secondary Evidence — Contents oe Letter.</p> <p>Testimony as to the contents of a letter addressed to defendant was inadmissible, in a criminal prosecution, in the absence of a showing that the original was not in existence.</p> <p>3. Same — Unsigned Letter — Identity of Writer.</p> <p>The letter being unsigned, and no effort being made to identify the handwriting, testimony as to its contents was inadmissible.</p> <p>See notes in 46 L. R. A. 641; 34 L. R. A. (N. S.) 811.</p>

<p>Criminal Law — Practice and Procedure — Effect of Judicature Act.</p> <p>Since the title of Act No. 286, Pub. Acts 1913, under which the commission was appointed tp draft the judicature act (Act No. 314, Pub. Acts 1915), provided for the revision and consolidation of the general laws relating to civil practice and procedure, and the title of the judicature act expressly limits its operation to civil practice and procedure, the 14-day notice required by section 5, chap. 18, of the judicature act (section 12577, 3 Comp. Laws 1915), does not apply to a criminal case where the defendant is bound over to the circuit court for trial at the present term of court, and the case is not oh the calendar; and the defendant may be tried at once under the former practice, unless there are other reasons for adjournment.</p>

<p>1. Indictment and Information — Sufficiency — Intoxicating Liquors — Criminal Law.</p> <p>An information charging defendant with a violation of section 4 of Act No. 381, Pub. Acts 1913 (2 Comp. Laws 1915, § 7121), in keeping and storing intoxicating liquors in “a garage, other than and not being the private residence” of said defendant, was sufficient; it not being necessary to specify whether the place was one of public resort or not, since it was not a private residence.</p> <p>2. Statutes — Construction—Conferring Privilege.</p> <p>While a statute directed to protecting an absolute right of person or property from criminal attack or invasion may sometimes justify resort to technical definitions and strained construction beyond its popular meaning to compass its manifest purpose, statutes which merely confer a privilege are to be construed, as far as possible, according to their common meaning, so as not to invite public mischief or authorize the individual to overreach the conferred privilege.</p> <p>3. Same — Privilege.</p> <p>The provision in section 4 of Act No. 381, Pub. Acts 1913, excepting a private residence from the inhibition of the statute, merely extends a privilege to the owner. Ostrander, C. J., dissenting.</p> <p>4. Same — Private Residence — Construction. •</p> <p>The words “private residence,” as used in said section 4, construed, and held, not to have the technical meaning of “dwelling house,” as applied under the common law to cases of burglary, etc.</p> <p>5. Intoxicating Liquors — Local-Option Law — Construction— Private Residence — Garage.</p> <p>In a prosecution for the violation of section 4 of Act No. 381, Pub. Acts 1913, in keeping and storing intoxicating liquors in a garage located on an alley at the rear of defendant’s lot upon which his dwelling house stood, distant some 40 feet from it, and in no way connected with it, said garage held, not to be included in the “private resideuce” of defendant, as used in said section 4 exempting a private residence from the inhibition of the statute.</p>

<p>Intoxicating Liquors — Local-Option Law — Construction—Private Residence — Garage.</p> <p>In a prosecution for the violation of Act No. 381, Pub. Acts 1913 (2 Comp. Laws 1915, § 7118 et seq.), prohibiting the keeping and storing of intoxicating liquors in any building other than a private residence, where it was admitted that the liquor was found in a room used by respondent as a garage in the rear oí his pool room, the second floor over the pool room being occupied by defendant as living rooms, tbe conviction of defendant for violation of tbe act was justified, since tbe garage was no part of tbe “private residence” of defendant. People v. Labbe, ante, 513.</p>

, presiding. Case by William Mittelstadt against George Kelly and Ira J. Kelly for personal injuries. Judgment for plaintiff. Defendants bring error. The cause of action arose October 3, 1915, the declaration (suit having been begun by summons, the date of which does not appear) was filed January 22, 1916, and the cause came on for trial June 28, 1917.

Grace Medland presented her claim for compensation against Velo Houle and Fred Houle, copartners as Houle Brothers, for the accidental death of her husband in defendants’ employ. From an order awarding compensation, defendants and the Chicago Bonding & Surety Company, insurer, bring certiorari.

Mandamus by the common council of the city of Detroit to compel George Engel, city controller, to prepare, countersign and transmit certain school bonds to the city treasurer in compliance with Act No. 322, Local Acts 1915. From an order granting the writ, defendant brings certiorari.

Mandamus by the common council of the city of Detroit to compel George Engel, city controller, to prepare, countersign and transmit certain library bonds to the city treasurer in compliance with Act No. 323, Local Acts 1915. From an order granting the writ, defendant brings certiorari.

, presiding. Bill by William J. Sturgis and David E. Sturgis, doing business as D. E. Sturgis & Son, against George Sprenger and another to enforce a mechanic’s lien. From a decree for plaintiffs, defendants appeal.

, presiding. Bill by Edith Connelly against Nellie Ford and another to set aside a deed. From a decree dismissing the bill, plaintiff appeals.

Bill by Archie F. Soules and another against Mary J. Soules to set aside certain deeds. From a decree for plaintiffs, defendant appeals. Plaintiffs who are respectively son and daughter of Friend D. Soules, now deceased, filed their bill of complaint in this case for the purpose, of setting aside two deeds by means of which the title to a house and lot was placed in said Friend D. Soules and his wife, Mary J. Soules, as tenants by the entireties.

<p>Replevin — Evidence—Question roe Jury.</p> <p>In. replevin by a wife for a piano seized to satisfy a debt of her husband, where the evidence as to the ownership of the piano was very conflicting, and the question of fact was submitted to the jury under proper instructions, the judgment of the court below in favor of the plaintiff will be affirmed.</p> <p>See note in 35 L. R. A. (N. S.) 713.</p>

Bill by John S. Nesbitt, administrator of 'the estate of Warren D. Baker, deceased, against the Onaway-Alpena Telephone Company and others to establish the title to certain corporate stock. From a decree for plaintiff, defendant telephone company appeals.

Bill by Flora Fowler against Charles B. Isbell and another for the specific performance of a land contract. From a decree for plaintiff, defendants appeal.

Bill by the city of Traverse City against the Michigan Railroad Commission and the Citizens’ Telephone Company to enjoin the fixing of telephone rates. From a decree for defendants, plaintiff appeals.

<p>Appeal from Wayne; Collingwood, J., presiding.</p> <p>Bill by August Streicher against Rachel Streicher for a divorce. From, a decree dismissing the bill, plaintiff appeals.</p>

Joseph R. Brown presented his claim for compensation against the Weston-Mott Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Massachusetts Bonding & Insurance Company, insurer, bring certiorari.

Case by Lukasz Pachuczynski against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant railway brings error.

, presiding. Mandamus by Sven J. Johnson to compel the board of supervisors of Ionia county tp order a tax spread for the payment of a drain contract. From an order granting the writ, defendant brings certiorari.

, presiding. Case by Seifert Foster, an infant, by Edward Foster, his next friend, and Edward Foster, individually, against Gustav A. Rinz, Sr., and Gustav A. Rinz, Jr., for personal injuries. Judgment for plaintiff. Defendant brings error.

Cross-appeals from Washtenaw; Kinne, J. Bill by George L. D. Peterson against Minnie R. Peterson for a divorce. Defendant filed a cross-bill asking for a divorce. From a decree for defendant on her cross-bill, both parties appeal.

Thomas Thornton presented his claim for compensation against the Grand Trunk-Milwaukee Car Ferry Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Bill by Charles Clarage, doing business as the Clarage Fan Company, against John Luphringer, national organizer of the International Association of Maehiiists, and others to enjoin the picketing of plaintiffs premises. From a decree for plaintiff, defendants appeal.

Bill by Fred Fleming and another against John Fleming to enjoin an action of ejectment and for the specific performance of a land contract. From a decree for plaintiffs, defendant appeals.

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

Mandamus by Alex. J. Groesbeck, attorney general, on the relation of Horace H. Dickinson, to compel the city election commission of Detroit, and Richard Lindsay, city clerk, to strike from the primary ballots the name of Edward J. Jeffries as a candidate for the office of mayor.

Mandamus by Richard H. Scott and others to compel Coleman C. Vaughan, secretary of State, to refrain from submitting certain proposed amendments to the Constitution to the electors at the general election in November. Charles W. Norton and others were by Consent allowed, to intervene and answer the petition and to be heard in argument..

John H. Banninga presented his first annual account and first special account as executor of the last will of Alice Maynard Keene, deceased. The account was disallowed in part, and he appealed to the circuit court. Judgment affirming the order of the probate court. The executor brings error.

Bill by Ada E. Hoyt against R. Andrew Fleming, individually and as administrator with, the will annexed of the estate of Hiram J. Hoyt, deceased, Stella Emerson and John Emerson, to set aside a sale of real estate on the ground of fraud, and for an accounting. From a decree dismissing the bill, plaintiff appeals.

Maria Curtis presented her claim for compensation against the Slater Construction Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Bill by William A. Comstock against Fred N. Potter and others for contribution as cosureties on certain promissory notes. Defendants filed a cross-bill claiming fraud. From a decree for plaintiff, defendants appeal.

Bill by Jesse S. Peters and another against Arthur E. Fowler, administrator of the estate of Abner Peters, deceased, and others, to set aside certain deeds and mortgages and to declare void the last will of Lafayette Peters, deceased. From a decree overruling a demurrer to the bill, defendants appeal.