Volume 217 — Michigan Reports

), J. Bill by the Northern Assurance Company of Michigan against Mabel A. Kelly and another for the cancellation of a policy of insurance. Defendants filed a cross-bill to enforce the policy. From a decree for defendants, plaintiff appeals.

<p>Exceptions before judgment from Ingham; Wiest (Howard), J.</p> <p>James Harmon was convicted of larceny.</p>

<p>Insurance — Beneficial Associations — Suspended Members — Reinstatement-Conflict in Supreme and Local Constitutions.</p> <p>In view of a provision of the constitution of the’ supreme council of a beneficial association giving a suspended member three months in which to make payment of arrearage of assessments and dues, in addition to a small fine, without requiring a health certificate, and making it the duty of the president of the local branch, at a regular meeting thereof, to reinstate any suspended member making such payment, a suspended member whose dues and assessments were paid to the secretary of the •local branch within 15 days after they became due, which were retained until the time of the trial, was reinstated and her policy valid, although the local branch had not met and acted on her reinstatement at the time of her death; a provision of the constitution of the local branch limiting the time and place of payment to regular meeting nights of the local branch being immaterial, especially in view of the fact that the provisions of the local constitution were often disregarded, and, if strictly enforced, would be in conflict with the constitution of the supreme council.</p>

), J. Bill of interpleader by The Maccabees against Clyde, Joseph, Irwin and Florence Wilber to determine defendants’ interest in a policy of insurance. From a decree for defendants Clyde, Joseph and Irwin, defendant Florence appeals.

), J. Assumpsit by Nelson M. Wilcox against the DyerJenison-Barry Land Company for an amount due under a contract of employment. Judgment for plaintiff on a directed verdict. Defendant brings error.

), J. Bill by Bessie R. Innis against I. Noble Heft and another to enforce the payment oí a judgment. From a decree dismissing the bill, plaintiff appeals.

), J., presiding. Bill by William H. Boone against Elmer E. Perrigo and others to foreclose a mechanic’s lien. The defendant Acme Lumber Company filed a cross-bill against defendant Ternes Coal & Lumber Company for specific performance of a contract. From a decree dismissing the cross-bill, the Acme Lumber Company appeals.

<p>Habeas Corpus — Captas—Release—Validity of Bond Pending Review.</p> <p>Where one under arrest on a capias was released by order of the circuit judge to appear before the court on the following morning in habeas corpus proceedings, said release was not an absolute and final discharge which rendered the writ of capias functus officio, and, on denial of bis release on habeas corpus and his remand to the custody of the sheriff, the bond given to secure his release pending review thereof in the Supreme Court was valid, at least as a common-law bond, and a judgment thereon is affirmed.</p>

), Ji Mandamus by Lewis J. Carpenter to compel Charles S. Clark to vacate and surrender the office of secretary of the Clinton County Agricultural Society. From an order granting the writ, defendant brings certiorari.

M.), J. Warren Utter was convicted of murder in the first degree, and sentenced to imprisonment for life in the branch of the State prison at Marquette.

), J. Alexander Covelesky was convicted of the crime of robbery, and sentenced to imprisonment for not less than 10 nor more than 20 years in the State prison at Jackson.

<p>Certiorari to Ottawa; Cross (Orien S.), J.</p> <p>Ray Swanson was convicted of bastardy.</p>

), J. Assumpsit by the F. M. Sibley Lumber Company against David Doran and another for lumber furnished under a building contract. Judgment for plaintiff on a directed verdict. Defendants bring error.

), J. Summary proceedings by The Detroit Free Press against Frank P. Miller for the possession of certain leased premises. There was judgment for defendant before the commissioner, and plaintiff appealed to the circuit court. Judgment for plaintiff on a directed verdict. Defendant brings error.

), J. Bill by Bernard Shiller against Harriet Lange and another for the specific performance of an optional land contract. From a decree dismissing the bill, plaintiff appeals.

), Webster (Clyde I.), and Collingwood (Charles B.), JJ. Bill by Marcus Van Baalen and others against the city of Detroit and others to enjoin the construction of a street railway, and the issuance of certain bonds. From a decree dismissing the bill, plaintiffs appeal.

), J. Bill by Elizabeth M. Munro against Fred C. Steinhauser and another to enjoin summary proceedings, for the rescission of a land contract on the ground of fraud, and to declare a lien upon the premises for the amount paid. From a decree for plaintiff, defendants appeal.

), J. Elon Hillman presented for probate the last will of Minnie Hillman, deceased. The will was allowed in the probate court, and Freeman Hillman and others appealed to the circuit court. Judgment for contestants. Proponent brings error.

<p>1. Corporations — Services—Contracts—Implied Contract — Evidence — Sufficiency.</p> <p>In an action for services rendered defendant corporation as its general manager, evidence held, sufficient to support the finding of the trial court that plaintiff was acting under an express contract, and that an implied agreement arose to pay what the services were reasonably worth.</p> <p>2. Same — Test of Implied Contract to Pay.</p> <p>The bare fact of a valuable service rendered for a corporation, standing alone, does not raise an implied promise to pay, but the test is as to whether such services were performed under circumstances fairly raising a presumption that the parties understood and intended that they should be paid for.</p> <p>3. Estoppel — Corporations— Annual Report — Directors — Liability Shown.,</p> <p>Defendant’s contention that, because plaintiff's claim for compensation as general manager of defendant .corporation was not included as a liability in defendant’s annual report to the State, which plaintiff signed as a director, he is therefore estopped from, asserting said claim, on the ground that innocent stockholders were thereby induced to purchase stock and hence defrauded, cannot he sustained, whére no stockholders! are parties to the action, and there is no evidence of any purchase of stock in reliance upon said report.</p>

), J. Assumpsit by the Phoenix Sprinkler & Heating Company against the Owen-Ames-Kimball Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.

, presiding. Assumpsit by the Hannan Real Estate Exchange against Robert C. Traub and . William H. Traub, co-partners as Traub Brothers & Company, for a commission on a lease. Judgment for defendants on a directed verdict. Plaintiff brings error.

), J. Winifred Brusseau presented a claim against the estate of Thomas H. Potter, deceased, for services rendered. The claim was disallowed before the commissioners, and claimant appealed to the circuit court. Judgment for claimant. Contestant brings error.

), J. Nathan Korn was convicted of receiving stolen goods, and sentenced to imprisonment for not less than 2 nor more than 5 years in the State prison at Jackson.

Bill by Mary Webber and another against Valata Webber to establish an interest in certain land. From a decree dismissing the bill, plaintiffs appeal.

), J. Assumpsit by Brittson & Smith, a copartnership, against Frank A. Kroll for a commission on the sale of a farm. Judgment for plaintiffs on a directed verdict. Defendant brings error.

), J. Bill by George Schuman against Christopher Schuman and another for the forfeiture of a life lease. From a decree for plaintiff, defendants appeal.

<p>X. Corporations — Stockholder May Not Withdraw Assets to Detriment oe Creditors.</p> <p>One cannot act as an incorporator, transfer an interest in property in payment of stock therein, take stock, become treasurer, draw a salary as such, and, when satisfied the company will prove a financial failure, by agreement with the other company officers take back the property assigned to the company and let creditors stand the loss, hut such property must be held to constitute an equitable corporate asset for the benefit of creditors on a bill in aid of execution by a judgment creditor of the corporation.</p> <p>2. New Trial — Equity Without Power in Law Case.</p> <p>On a bill in aid of execution by a judgment creditor, the chancery court properly refused to grant a new trial in the law case; motion for same should have been made in the law case within the time fixed by the court rules.</p>

), J., presiding. Assumpsit by Florence M. Burke and another against Charles M. Burke for money had and received. Judgment for defendant. Plaintiffs bring error.

), J. Vassiteous Petropoulapos was convicted of sharing in the proceeds of prostitution, and sentenced to imprisonment for not less than 2% nor more than 5 years in the State prison at Jackson.

), J. Bill by Louise W. Atkinson against the St. Matthias Church and others to restrain summary proceedings, and to be decreed owner of land title to which' stands in defendant. From a decree for plaintiff, defendant church appeals.

), J. Case by Robert E. Anderson against the Chicago, Milwaukee & St. Paul Railway Company for failure to furnish cars for the transportation of logs. Judgment for plaintiff. Defendant brings error.

<p>1. Divorce — Marriage—Common-Law Marriage — Evidence—Sufficiency.</p> <p>In a suit for divorce by the wife, alleging a common-law marriage, evidence held, sufficient to establish the marriage.</p> <p>2. Same — Extreme Cruelty — Dismissal.</p> <p>Where both parties are guilty of extreme cruelty, the courts will leave them where they have placed themselves, and the bill of plaintiff and cross-bill of defendant will be dismissed.</p> <p>on the question of general characteristics and validity of common-law marriage, see note in L. K. A. 1915E, 8.</p>

<p>Error to Berrien; White (Charles E.), J.</p> <p>Frank J. Quigley and Fred Hague were convicted of robbing a bank.</p>

Case by Joseph Ross, administrator of the estate of Arthur J. Ross, deceased, against Walker D. Hines, director general of railroads, for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.

), J. Assumpsit in justice’s court by Dolly Caine against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to recover the value of lost baggage. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Certiorari to Muskegon; Vanderwerp (John), J.</p> <p>Burrell Fenner was convicted of bastardy.'</p>

<p>1. Appeal and Error — Res Judicata.</p> <p>In an action against a railroad company for personal injuries, an objection that plaintiff did not make the case alleged in the declaration, in that no showing was made that defendant assumed liability for torts committed while the property of said company was in the hands of receivers, held, determined adversely to defendant on the former review of this case (205 Mich. 387).</p> <p>2. Same — New Trial — Weioht of Evidence.</p> <p>In reviewing the denial of a motion for a new trial on the ground that the verdict was against the great weight of the evidence, the Supreme Court must view the testimony in the light most favorable to the plaintiff.</p> <p>3. New Trial — Weight of Evidence.</p> <p>Verdict held, not against the great weight of the evidence.</p> <p>ON REHEARING</p> <p>4. Trial — Special Questions Must be Controlling on Main Issue.</p> <p>In the submission of a special question to the jury under 3 Comp. Laws 1915, § 12611, the question must be so framed as to call for an answer which may be controlling on the main issue.</p> <p>5. Same — Not Error to Refuse Special Question Not Controlling Main Issue.</p> <p>Where the negligence counted upon by plaintiff was the frightening of his horse by the blowing of the locomotive whistle at the crossing, the trial court was not in error in refusing to submit to the jury the special question as to whether the whistle was sounded at the whistling post, since an answer thereto would not be controlling of the main issue.</p> <p>6. Appeal and Error — Obiter Dictum.</p> <p>"Where, on review of a directed verdict in favor of defendant, the question of the weight of the evidence was not before this court, an expression of opinion that “the testimony of disinterested witnesses is most convincing that plaintiff was mistaken in his testimony,” etc., was obiter dictum.</p> <p>7. Same — Retrial—New Trial — Weight of Evidence.</p> <p>Where the Supreme Court reversed a directed verdict for defendant on the ground that there was a case for the jury, it will not, on review of a verdict for plaintiff on substantially the same record, on retrial, set it aside as against the weight of the evidence.</p> <p>Clark and Sharpe, JJ., dissenting on rehearing.</p>

<p>Negiigence — Cause oe Accident — Conjecture—Directed Verdict.</p> <p>In an action by a passenger for hire for personal injuries alleged to have been caused by defendant’s allowing an inexperienced girl to drive tbe automobile in which plaintiff was riding, with the result that it was upset and plaintiff injured, a directed verdict for defendant is affirmed, on error, by a divided court, on the ground that plaintiff’s testimony failed to bring the cause of the accident out of the realm of conjecture.</p>

<p>1. Attorney and Ghent — Disbarment—Reinstatement — Right oe Court.</p> <p>The right 'of the court disbarring an attorney to reinstate him is inherent in such court.</p> <p>2. Same — Vacation oe Order oe Disbarment — Reinstatement— Nonresident.</p> <p>On petition of a disbarred attorney for reinstatement, upon a showing of high moral character and that he has fully expiated the fault and offense for which he was disbarred, the Supreme Court will vacate the order of disbarment as of this date, but because he is no longer a resident of this State his petition for reinstatement must be denied.</p>

), J. Bill by Walter H. Brooks, trustee in bankruptcy of the Moline Milling Company, against John Buys and others to reach funds transferred in fraud of créditors. From a decree for plaintiff, certain defendants appeal.

), J. Summary proceedings by Steve Pickalo and another against Tony Mack for the possession of leased premises. There was judgment for plaintiffs before the commissioner, and defendant appealed to the circuit court. Judgment for plaintiffs. Defendant brings error.

Bill by Louis G. Palmer against Emil C. Pokorny and another for specific performance of a contract. From a decree for plaintiff, defendants appeal.

<p>1. Insurance — Mutual Company — Arbitration — Award Final Where so Agreed.</p> <p>Where members of a mutual fire insurance company provide a board or tribunal to settle differences which may arise between the association and its members and making its decision final, a member who accepts a contract of insurance therein is bound by his agreement in the absence of waiver, or refusal toj act or pay an- award on the part of the association, and the courts are, ¡as a general rule, without jurisdiction to relieve therefrom.</p> <p>2. Same — Unrevoked Award Bar to Action at Law.</p> <p>Where plaintiff member of a mutual Are insurance company submitted his claim to arbitration, as provided in his policy, and the award of the arbitrators in favor of the association stands unrevoked, he is precluded from maintaining an action at law, since said award may not be attacked collaterally; his remedy, if any, being in equity to set aside said award on the ground of fraud, etc.</p> <p>3. Equity — Jurisdiction—Setting Aside Award for Fraud.</p> <p>A court of equity has jurisdiction over awards to restrain enforcement thereof and to set them aside in the ordinary cases of fraud, corruption, and mistake, or other extraneous causes going to their validity.</p> <p>4. Beneficial Associations — Insurance — Mutual Company — Unbevoked Award Bar to Action at Law.</p> <p>To the extent that the case of Dick v. International Corro gress, 138 Mich. 372, may be construed as authority for the proposition that one who has stipulated for, and submitted his case to, an award may ignore it and resort to an action at law, it is overruled.</p>

<p>1. Insurance — Contracts—Nature op Policy — Legality.</p> <p>Parties may make such, a contract for insurance as they see fit, provided it does not contravene any provision of law.</p> <p>2. Same — Fire Insurance — Mutual Company — By-Laws Part op Policy Where so Agreed.</p> <p>A policy in a mutual fire insurance company is at all times subject to the articles of association and by-laws of the company, where made so by agreement in the policy.</p> <p>On effect of award under terms of policy upon mortgagee not a party thereto, see note in 25 L. R. A. (N. S.) 740.</p> <p>3. Same — Assignment of Policy — Rights of Assignee.</p> <p>An assignee of a fire insurance policy could claim no greater rights than those of his assignor.</p> <p>4. Same — Arbitration—Matters to be Arbitrated.</p> <p>A provision in a policy in a mutual fire insurance company that “in case of disagreement with the loser of property insured regarding any matter pertaining to a loss or damage or the payment thereof, said matter in difference shall be determined by arbitration,” held, to be inclusive of the question of the liability of the company, and not restricted to the question of the amount of damages.</p> <p>5. Same — Award of Arbitrators Final Where Not Appealed From — Estoppel.</p> <p>Where the assignee of the policy agreed to arbitrate his claim in accordance with the terms of his policy, and failed to appeal to the final arbitration committee, as he had a right to do, from an award denying liability on the ground that the policy was never legally transferred to plaintiff under the by-laws of the insurer, he is precluded from maintaining an action at law on the policy while said award stands unrevoked.</p> <p>6. Same — Validity of Award Where Arbitrators Not Disinterested.</p> <p>An objection by plaintiff that an award against him by arbitrators is void because they were members of the company and not disinterested is not tenable where he agreed in the policy that the arbitrators should be members of defendant company; and especially where the arbitration was had at his request.</p> <p>7. Same — Award by Arbitrators Not to be Attached Collaterally — Equity.</p> <p>An award by the arbitrators may be set aside, if at all, only in. a court of equity, and is not open to collateral attack in an action at law.</p>

Millie Kirkley presented her claim for compensation against the General Baking Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Casualty Reciprocal Exchange, insurer, bring certiorari.

), J., presiding. Case by Joseph Oleszek against the Ford Motor Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J. Bill by Sarah Rozell against Cass B. Rozell and others for the construction of a will. From the decree rendered, plaintiff appeals.

<p>1. Intoxicating Liquor — Cider — Quashing Information — Evidence — Sufficiency.</p> <p>In a prosecution for violating the liquor law (Act No. 53, Pub. Acts 1919), based on defendant’s possession of intoxicating cider ready for sale as a beverage, testimony at the preliminary examination by an analyst that the cider tested 2.58 per cent, and upwards alcohol by volume was sufficient, without any further evidence, to justify denial of defendant’s motion to quash the information on the ground that there was insufficient evidence that the cider was intoxicating.</p> <p>2. Same — “Cider” Defined.</p> <p>In law “cider” means the fermented juice of apples.</p> <p>3. Same — Alcoholic Content Question of Pact.</p> <p>As to whether cider is intoxicating, whether it contains alcohol, held, a question of fact.</p> <p>4. Same — Criminal Law — Evidence—Directed Verdict.</p> <p>Testimony that defendant had in his possession for sale as a non-intoxicating beverage cider which in fact was intoxicating, held, to justify refusal of a directed verdict in defendant’s favor.</p> <p>As to what liquors are within statutory restrictions as to the sale of “spirituous” “vinous” “fermented,” and other intoxicating liquors, see note in 20 L. R. A. 645.</p> <p>As to whether statutes forbidding the sale of a certain class of liquor include nonintoxicating liquor, see notes in 20 L. R. A. (N. S.) 1146; 26 L. R. A. (N. S.) 895; 46 L. R. A. (N. S.) 759; L. R. A. 1917B, 974.</p> <p>5. Same — Sweet Cider Mat be Sold as a Beverage.</p> <p>Fruit juice or sweet cider may be made and sold and used as a beverage without treatment to prevent fermentation since it does not fall within the provisions of section 3, Act No. 53, Pub. Acts 1919, defining intoxicating liquors as including “all mixtures, compounds or preparations, whether liquid or not, which, when mixed with water or otherwise, produce by fermentation or otherwise, an in- . toxicating liquor,” nor does the exception contained in section 9 of said act limit the manufacture and sale of sweet cider to the purposes of mating vinegar or unless fermentation thereof is prevented. Fellows, C. J., and Clark and Sharpe, JJ., dissenting.</p>

), J. Mary Sekelyn was convicted of illegally practicing medicine, and sentenced to imprisonment for 6 months in the Detroit house of correction.

John Norbut presented his claim for compensation against the I. Stephenson Company for accidental injuries in defendant’s employ. From an order modifying the terms of a lump sum settlement, defendant and the Fidelity & Casualty Company of New York, insurer, bring certiorari.

<p>Error to Gratiot; Moinet (Edward J.), J.</p> <p>Case by the Ithaca Roller Mills against the Ann Arbor Railroad Company for damage to goods in transit. Judgment for plaintiff. Defendant brings error.</p>

), J. Cora Turner presented a claim against the estate of Eliza M. Turner, deceased, for services rendered. The claim was allowed by the commissioners, and H. Wesley Turner appealed to the circuit court. Judgment, for claimant. Contestant brings error. Plaintiff, Cora Turner, is the wife of Howard Turner. He and H. Wesley Turner are sons of decedent, Eliza M. Turner. Mrs. Turner was a long time resident of Lansing and died in September, 1919, at the age of 84 years.

Gertrude Sichterman presented her claim for compensation against the Kent Storage Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Michigan Employers Casualty Company, insurer, bring certiorari. Harry Sichterman was a traveling salesman in the employ of defendant Kent Storage Company.

Hilma Kottari and another presented their claim for compensation against the Empire Iron Company for the accidental death of their decedent in defendant’s employ. From an order awarding compensation, defendant and the Fidelity & Casualty Company of New York, insurer, bring certiorari.

Mandamus by Bernard Schwartz and others, co-partners as Bernard Schwartz & Sons, to compel George O. Driscoll, presiding circuit judge of Wayne county, to vacate an order denying a motion to stay proceedings under a decree of injunction.

), J. Bill by Fred C. Zimmerman and another against Samuel Feldman and others for the rescission of a land contract, and for an accounting. From a decree dismissing the bill, plaintiffs appeal.

Mandamus by Claude O.- Taylor to compel the Michigan public utilities commission to fix the rates to be paid for gas in the city of Grand Rapids.

), J. Joseph Schepps was convicted of robbery while armed, and sentenced to imprisonment for not less than 20 nor more than 40 years in the State prison at Marquette.

Mandamus by Dale J. Miley and another to compel Frederick J. Mayne, circuit judge of Grand Traverse county, to strike a bill of exceptions from the files. Motion by Dale J. Miley and another against Guy McKevitt Johnson and another to dismiss a bill of exceptions.

<p>1. Judgment — Default—Filed or Entered — Regularity.</p> <p>Under 3 Comp. Laws 1915, § 12737, providing that a default may he filed or entered, a default entered in the common rule book is regular, although Circuit Court Rule No. 32 provides only that it may be filed, since the rule cannot and does not undertake to cut down the terms >f the statute.</p> <p>2. Same — Motion to Set Aside — Time.</p> <p>A motion to set aside a default and judgment, made more than six months after the judgment was entered, was properly denied under the provisions of .Circuit Court Rule No. 32.</p> <p>3. Same — Corporations—Sickness of Secretary.</p> <p>On motion to set aside a default judgment against a corporation, the sickness of its secretary, upon whom service was made, cannot be considered.</p> <p>4. Same — Excess op Ad Damnum; Cured by Remittitue.</p> <p>A judgment for damages in excess of the ad damnum may be cured by remittitur of the excess.</p>

<p>Error to recorder’s court of Detroit; Marsh (Pliny W.) J.</p> <p>John Margelis was convicted of violating the liquor law.</p>

<p>Judgment — Parties—Estoppel—Liens.</p> <p>Where a corporation was a party to proceedings by a judgment creditor to reach assets of a stockholder in aid of execution, and it failed to assert a lien on the stock of said stockholder for money advanced, it may not, after sale of said stock in pursuance of a decree of the court to satisfy said judgment, for the first time assert a lien thereon superior to plaintiff’s rights, but whatever rights it has are subordinate thereto.</p>

), J. Martin Lowrey was convicted of larceny from the person, and sentenced to imprisonment for not less than 2% nor more than 5 years in the State prison at Jackson.

), J. Bill by the National Bank of Commerce of Toledo, Ohio, against Leroy Corliss, the Waterloo Creamery Company and another to establish and foreclose a lien, and for an accounting. From a decree for plaintiff, defendants Corliss and Waterloo Creamery Company appeal.

), J. Assumpsit by Charles L. Ferrand and another against the Fraternal Reserve Association for the amount of a benefit certificate. Judgment for plaintiffs. Defendant brings error.

Assumpsit by the Mancourt-Winters Coal Company against the Ohio & Michigan Coal Company for goods sold and delivered. Judgment for plaintiff on a directed verdict. Defendant brings error.

Lettitia Bryan presented her claim for compensation against the Hudson Motor Car Company for the accidental death of her son in defendant’s employ. From an order awarding compensation, defendant and the Zurich General Accident & Liability Insurance Company, insurer, bring certiorari.

Albert Clifton presented his claim for compensation against the Kroger Grocery & Baking Company for an accidental injury in defendant’s employ. From an order awarding compensation, defendant and the Fidelity & Casualty Company of New York, insurer, bring certiorari.

George Odie presented his claim for compensation against the Charcoal Iron Company of America for an accidental injury in defendant’s employ. From an order awarding compensation, defendant and the Michigan Mutual Liability Company, insurer, bring certiorari.

Ida Wiio presented her claim for compensation against the Quincy Mining Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Josephine McGee presented her claim for compensation against the Columbia Body Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Michigan Mutual Liability Company, insurer, bring certiorari.

Algernon Webber presented his claim for compensation against the Dort Motor Company for accidental injuries in defendant’s employ. From an order denying a petition to discontinue payments under an agreement, defendant and the Michigan Mutual Liability Company, insurer, bring certiorari.

Doris Klein, and another presented their claim for compensation against Len H. Darling Company for the accidental death of their decedent in defendant’s employ. From an order awarding compensation, defendant and the Hartford Accident & Indemnity Company, insurer, bring certiorari.

Fannie Helder presented her claim for compensation against the Luce Furniture Company for the accidental death of her husband in defendant’s employ. From an order awarding compensation, defendant and the Furniture Mutual Insurance Company, insurer, bring certiorari.

Arthur White presented his claim for compensation against Morgan & Wright for an accidental injury in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Ruby R. McCartney and others presented their claim for compensation against the Wood-Temple Company for the accidental death of their decedent in defendant’s employ. From an order awarding compensation, defendant and the Ocean Accident & Guarantee Corporation, Limited, insurer, bring certiorari.

Rose Fortin and others presented their claim for compensation against the Beaver Coal Company for the accidental death of their decedent in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

<p>1. Master and Servant — Personal Injuries' — Negligence—Contributory Negligence — Workmen's Compensation Act.</p> <p>In an action by an employee against his employer for personal injuries, where the parties are not under the workmen’s compensation act, the defendant is not entitled to the benefit of the defense of contributory negligence where it could not be said that, upon the record as presented, plaintiff was guilty of wilful negligence (2 Comp. Laws 1915, § 5423).</p> <p>2. Same — -Wilful Negligence — Contributory Negligence.</p> <p>Although plaintiff, a core maker, was a man of mature years, had worked for defendant for nearly eight' years, and had worked in other foundries, it could not be said that he was guilty of wilful negligence in inserting a cold, rusty iron clamp into molten metal contained in a mold, causing an explosion, where he testified that he did not know and had never been warned of the danger.</p> <p>3. Same — Negligence—Warning and Instructing Servant.</p> <p>Where the danger of said explosion was not obvious but depended upon the operation of certain chemical laws, the question of defendant’s negligence in failing to warn plaintiff was properly submitted to the jury.</p> <p>On liability of master for injuries to servant caused by the explosion of molten metal with which hei is at work, see note in 27 L. R. A. (N. S.) 953.</p>

<p>Error to St. Clair; Tappan (Harvey), J.</p> <p>Case by William A. Smith against the Port Huron Gas & Electric Company for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

), J. Case by Khalil Blaty and others, copartners as Blaty & Company, against James C. Gray and others for the wrongful conversion of a stock of goods. Judgment for plaintiffs. Defendant Gray brings error.

), J. Assumpsit by Peter Hage and Harry Koops, co-partners as the Byron Center Grain & Fuel Company, against E. L. Wellman Company for breach of a contract for the sale of certain com. Judgment for plaintiffs. Defendant brings error.

), J. Bill by Joseph C. Harley and others against Morris A. Zack and another to enjoin the violation of certain building restrictions. From a decree for plaintiffs, defendant Zack appeals.

), J. Bill by LaVern Wortman against George M. Stafford to quiet title to land, and enjoin suit at law. From a decree for defendant, plaintiff appeals.

Mandamus by William G. Weber, trustee in bank-: ruptcy of the estate of Walter T. Wilson, to compel Theodore J. Richter, circuit judge of Wayne county, to vacate an order quashing garnishment proceedings.

), J., presiding. Bill by George Hughes and others against the city of Detroit and others to restrain the enforcement of an ordinance. From a decree dismissing the bill, plaintiffs appeal.

<p>1. Intoxicating Liquor — “Cider”—Definition.</p> <p>In law “cider” means the fermented juice of apples.</p> <p>2. Same — “Hard Cider” — Definition.</p> <p>“Hard cider” is cider that is excessively fermented, and is presumptively intoxicating.</p> <p>3. Same — Criminal Law — Unlawful Possession — Trial—Appeal and Error.</p> <p>In a prosecution for violating the liquor law (Act No. 53, Pub. Acts 1919), where defendant had in his possession a quantity of hard cider which he claimed he had bought for the purpose of making vinegar, which he had a right to do under section 9 of the act, but which he admitted he had used partly as a beverage, he may not complain that the question of the unlawful possession of it as an intoxicating liquor was submitted to the jury.</p> <p>4. Same.</p> <p>A beverage containing alcohol is intoxicating.</p> <p>5. Same — Criminal Law — Husband and Wife — Husband Liable for Wife’s Unlawful Acts.</p> <p>Where defendant had in his home intoxicating wine which he drank as a beverage, the fact that the wine was made by his wife during his absence from home and without his knowledge is no defense in a prosecution for violating the liquor law, since, under the circumstances, he is liable for the unlawful acts of his wife.</p> <p>As to what liquors are within statutory restrictions as to the sale of “spirituous” “vinous” “fermented” and other intoxicating liquors, see note in 20 L. R. A. 645.</p>

), J. Phil Sigers was convicted of sharing in the proceeds of prostitution, and sentenced to imprisonment for not less than 2% years nor more than 5 years in the Detroit house of correction.

<p>T. Executors and Administrators — Appeal from Probate Court —Appeal Bond.</p> <p>Under 3 Comp. Laws 1915, § 14152, an executor appealing from the decision and report of commissioners on claims is required to file a bond.</p> <p>2. Mandamus — Executors and Administrators — Appeal Bond —Dismissal.</p> <p>Mandamus will issue to compel tbe circuit judge to dismiss an appeal by an executor from tbe decision and report of commissioners on claims where no appeal bond was fiied in accordance with 3 Comp. Laws 1915, § 14152.</p>

), J., presiding. Bill by Edward Brennan against Matthew Finn to have a deed construed to be a mortgage, and for an accounting. From a decree for plaintiff, both parties appeal.

), J. Case by Amariah F. Freeman against Egbert G. Hoag for breach of a contract for the division of the proceeds of a promissory note. Judgment for defendant. Plaintiff brings error.

<p>Mandamus by Walter Karasiewicz to compel Willis B. Perkins, circuit judge of Kent county, to vacate an order denying a motion to recall an execution.</p>

<p>Error to Ingham; Collingwood (Charles B.), J.</p> <p>Case by the Purity Ice Cream & Dairy Company against the Adams Express Company for delay in delivery of goods. Judgment for plaintiff. Defendant brings error.</p>

<p>Appeal from Oakland; Gillespie (Glenn C.), J.</p> <p>Bill by Franz S. Power against Mary Power for a divorce. From a decree dismissing the bill, plaintiff appeals.</p>

<p>Exceptions before judgment from St. Clair; Law (Eugene F.), J.</p> <p>Samuel Carey was convicted of an act of gross indecency.</p>

), J. Bill by Dan Olson against Herman Sash and another for specific performance of an optional land contract. From a decree dismissing the bill, plaintiff appeals.

<p>1. Landlord and Tenant — Tenant from Year to Year — Holding Over Renews Tenancy.</p> <p>When a tenant under a lease for a year or' years holds over, the law implies a contract on Ms part to renew the tenancy on the same terms for another year.</p> <p>2. Same.</p> <p>The fact that the tenant notified the landlord that he would be unable to vacate on the date the lease expired but would do so as soon as possible, did not relieve him from the legal effect of his holding over, where the landlord replied that unless the premises were vacated on the date the lease expired he should hold the- tenant as renewing for another year under the terms of the lease.</p> <p>As to whether each holding over by a tenant after expiration of a term for years constitute a new and separate term, distinct from that which preceded or followed, see note in 25 L. R. A. CN. S.) 847.</p> <p>3. Same — Evidence of Lack of Repair Inadmissible to Defeat Action for Rent Where Tenant Agrees to Repair.</p> <p>Testimony that the roof was out of repair was not admissible 'in defense of an action for the rent,, where the lease provided that defendant should keep the premises in repair during the entire term of the lease, since defendant may not plead his own wrong.</p> <p>4. Same — Re-entry and Re-eetting — Continuous Tenancy Where Tenant Holds Over.</p> <p>Defendant may not evade liability on the legal fiction that there was a re-entry and a re-letting at the time defendant began the holding over; the tenancy being a continuing one.</p> <p>5. Samis — Relief from Obligation to Repair — Consideration.</p> <p>Evidence offered by defendant to show that by implication or by. verbal understanding he was relieved of the obligation to repair was properly refused, since said agreement was without consideration and unenforceable.</p> <p>6. Same — Sufficiency of Efforts to Re-let Question for Jury.</p> <p>The question of the sufficiency of plaintiff’s efforts to find another tenant was properly left to the jury.</p>

), J. Rose Berner appealed from an order of the probate court of Calhoun county appointing Willard A. Knight administrator of the estate of Carl F. T. Berner, deceased. From a decree affirming the order of the probate court, appellant brings certiorari.

(Guy E.), J. presiding. William H. Richards presented for probate the last will of Emily Grace Browne, deceased. The will was allowed in the probate court, and -Anna Bell Jones appealed to the circuit court. Judgment for proponent. Contestant brings error.

), J., presiding. Assumpsit by Henry T. Whittlesey against the Her-brand Company for commissions on the sale of certain forgings. Judgment for plaintiff. Defendant brings error.

), J., presiding. Bill by Clyde Goodrich and others against William H. McMillan and another to require the rebuilding of a dam. J. M. East and others, owners of flooded lands, intervened as defendants, asking affirmative relief. From a decree for defendants, plaintiffs appeal.

), J. Stanley Miller was convicted of violating the liquor law, and sentenced to imprisonment for not less than 6 months nor more than 1 year in the Detroit house of correction.

), J. J. Glenn Toner was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.

<p>1. Interpleader — Bills and Notes — Legal and Equitable Titles.</p> <p>The proceeds of commercial paper may be made the subject of a bill of interpleader, and it is of no importance that one party claims the legal and the other the equitable title.</p> <p>2. Same — Nonresident—Process—Jurisdiction.</p> <p>Where one of the defendants in a suit by bill of inter-pleader was a resident of the State of Ohio, the process and order of the court served on him in said State conferred no jurisdiction on tie Michigan court, and a default judgment against him in said suit was properly set aside on his motion for lade of jurisdiction.</p>

<p>Error to Wayne; Davis (Frank D. M.), J., presiding.</p> <p>Assumpsit by Isadore Lubetsky against the Standard Fire Insurance Company of New Jersey on a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

), J. presiding. Bill by Estelle Tufford against Louis Gordon for specific performance of a land contract. From a decree dismissing the bill, plaintiff appeals.

), J. William Davis was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Marquette.

Exceptions before judgment from Cass; Des Voignes (L. Burget), J. Clark Smith was convicted of an assault with intent to do great bodily harm less than the crime of murder.

), J. Assumpsit by Albert H. Prange against the city of Flint for breach of a contract for the construction of certain sewers. Judgment for plaintiff. Defendant brings error.

), J. Assumpsit in justice’s court by Samuel Levin against Frederick E. Fisher for breach of a contract for the sale of certain bottles. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant non obstante veredicto. Plaintiff. brings error.

), J. Case by Augusta Rotter, administratrix of the estate of Stanley Rotter, deceased, against the Detroit United Railway and the Union Brewing Company for the alleged negligent killing of plaintiff’s intestate. Judgment for defendants.

Burget), J. Ella Johnson presented a claim against the estate of William S. Charles, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. Judgment for defendant on a directed verdict. Claimant' brings error.

Petition by William Roberts against Oramel B. Fuller to set aside a sale of land delinquent for taxes. From a decree dismissing the petition, plaintiff appeals.

), J. Assumpsit by Louis W. Lindemann and others against the American Insurance Company of Newark, N. J., and others on certain policies of insurance. Judgment for defendants on a directed verdict. Plaintiffs bring error.