Volume 218 — Michigan Reports

), J. John O’Keefe, alias John Wilson, was convicted of disturbing the peace, and sentenced to imprisonment for 90 days in the Detroit house of correction.

<p>1. Street Railways — Personal Injuries — Right to Use of Street.</p> <p>In an action for personal injuries received at a street intersection in a collision between defendant’s street car and a wagon driven by plaintiff, held, that defendant had no greater right to the use of the street at the crossing than had plaintiff.</p> <p>2. Same — Evidence — Negligence—Contributory Negligence— Question eor Jury.</p> <p>Where plaintiff’s view to the east was entirely obstructed by defendant’s standing cars, and, after waiting 5 or 6 minutes for the cars to move, and after looking and listening without detecting the approach of a car, plaintiff proceeded to cross the street, when he was struck by defendant’s west-hound car, which, according to the testimony of plaintiff’s witnesses, was traveling at the rate of 12 to 15 miles an hour without sounding the gong, the questions of plaintiff’s contributory negligence and defendant’s negligence were for the jury.</p> <p>3. New Trial — Evidence—Great Weight oe Evidence.</p> <p>The conclusion of the trial court that the verdict was not against the overwhelming weight of the evidence, held, supported by the record.</p> <p>4. Master and Servant — Workmen’s Compensation Act — Action Against Third Party — Election.</p> <p>Although an, employee, injured in the course of his employment by collision with a street car, allowed his employer’s insurer to pay his hospital and doctor's bills (2 Comp. Laws 1915, § 5434), he did not thereby elect to proceed against his employer under the workmen’s compensation act and thus bar his right to bring an action at law against the street railway company (2 Comp. Laws 1915, § 5468), where he made no claim foH compensation under the act.</p>

), J. Summary proceedings by Charles Lada against John Laszlo and another for the possession of certain real property. There ivas judgment for plaintiff, and defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.

), J., preside ing. Case by Albert B. Walsh against Henry Schubiner and another for fraud. Judgment for defendants non obstante veredicto. Plaintiff brings error.

Mandamus by Martha I. Lancashire and another, to compel Joseph A. Moynihan, circuit judge of Wayne county, to vacate an order requiring the production of certain books and papers.

), J. Assumpsit by Joseph Witkowski and others, doing business as Joseph Witkowski & Sons, against the. Fidelity & Casualty Company of New York on a policy of insurance. Judgment for defendant on a directed verdict. Plaintiffs bring error.

<p>2. Sales — Uniform Sales Aot — Breach of Warranty — Rescission — Tender.</p> <p>Where plaintiff claimed that defendant sold to him a new automobile but instead delivered to him a secondhand one, in order for plaintiff to recover under the uniform sales act (3 Comp. Laws 1915; § 11900) for breach of warranty, he must have returned or offered to return the car received within a reasonable time and in substantially as good condition as when it was delivered to him, unless the deterioration or injury was due to the breach of warranty complained of.</p> <p>2. Same — Rescission—Tender—Evidence—Sufficiency.</p> <p>Testimony on the part of plaintiff held, sufficient to establish the fact that as soon as plaintiff was satisfied that the car delivered to him was a used car he offered to return it and demanded payment back of what he had' paid on the purchase price.</p> <p>3. Same — Physical Tender Unnecessary Where Idle Ceremony.</p> <p>"Where, when the offer to return the car was made by plaintiff, defendant denied that it was a used car but insisted that it was a new one, the physical tender back of the car is held, to have been unnecessary as an idle ceremony.</p> <p>4. Same — Rescission—Offer to Return Timely.</p> <p>Although plaintiff used the car for some time in his business, where there was no evidence that he misused it, and such use and consequent deterioration were due to the fraudulent action of defendant in selling him a used car for a new one, and he offered to return it as soon as he discovered the fraud, the offer to return was timely.</p> <p>5. Same — Pleading—General Issue — Notice of Set-off.</p> <p>Refusal of defendant’s offer of proof as to what the use of the car was worth to plaintiff in his business, where the plea was the general issue with no notice of set-off, held, not error.</p> <p>6. Same — Uniform: Sales Act — Breach of Warranty — Measure of Damages.</p> <p>Instruction by the trial court that plaintiff was entitled to recover the amount he had paid and the price agreed upon as the value of a used car he turned in, held, not erroneous, being in conformity with the rule fixed in the uniform sales act (3 Comp. Laws 1915, § 11900).</p> <p>7. Same — Appeal and Error — Evidence—Admissibility.</p> <p>Defendant’s complaint that it should have been permitted to show the real value of the car turned in by plaintiff, and that the value agreed upon was a trading value, held, without merit, where the record fails to show offer of such proof.</p> <p>8. Same — Trial—Instructions.</p> <p>Defendant’s complaint of prejudicial remarks by the trial court, and that the charge to the jury was “inconsistent, ambiguous, prejudicial to the defendant and misleading to the jury,” held, not sustained by the record.</p>

), J. Case by Herman J. Van Dam and John E. Bellamy, copartners as the Auto Parts Tool & Manufacturing Company, against the Doty-Salisbury Company for damages caused by the falling of a water tank. Judgment for plaintiffs. Defendant brings error.

), J. Case by Corilla F. Burns against the township of Van Burén for personal injuries caused by a defective highway. Judgment for plaintiff. Defendant brings error.

), J. Case by Richard W. Burns against the township of Van Burén for injuries to plaintiff’s wife caused by a defective highway. Judgment for plaintiff. Defendant brings error.

<p>Criminal Law — Continuance — Absent Witnesses — Abuse of Discretion — Review.</p> <p>The granting or refusing of applications for continuance being within the discretion of the trial court, refusal to grant a continuance for absent witnesses, in a prosecution for violating the liquor law, will not be reviewed by the Supreme Court in the absence of a showing of abuse of discretion.</p>

<p>1. Criminal Daw — Cross-Examination—Abuse of Discretion.</p> <p>Where great latitude in the cross-examination of a witness was allowed, and counsel took no exception to the ruling of the court limiting same, no abuse of discretion or harmful error is shown.</p> <p>2. Same — Appeal and Error — Assignment of Error Too Vague to be Considered.</p> <p>An assignment of error based on permitting leading questions without calling attention to any particular question, counsel saying “A brief survey of the record shows the type of questions put to these witnesses,” held, too vague to be considered.</p> <p>3. Same — Rebuttal Proof.</p> <p>Error in not limiting rebuttal proof, held, not shown by the record, where the testimony about which complaint is made was limited to the period of time and to the situation about which his counsel had examined defendant in great detail.</p> <p>4. Same — Intoxicating Liquors — Evidence—Sufficiency — Question for Jury.</p> <p>In a prosecution for violating the liquor law, conflicting testimony held, to present a question for the jury.</p>

), J., presiding. Bill by Harry J. Martin and another, copartners as the H. J. Martin Company, against Michael Trautz and others to foreclose a mechanics’ lien. The Hamtramck Lumber & Supply Company filed a cross-bill to foreclose a mechanics’ lien. From a decree for plaintiff and cross-plaintiff, defendants Trautz appeal.

<p>1. Street Railways — Negligence—Evidence—Sufficiency.</p> <p>In an action against a street railway company for personal injuries caused by a collision between plaintiff’s automobile and defendant’s street car at a street intersection, testimony held, sufficient to show negligence on the part of defendant.</p> <p>2. Same — Contributory Negligence — Ordinances—Right to Rely Upon Observance of Ordinance.</p> <p>In view of an ordinance of the city of Detroit requiring street cars to stop at crossing on signal to take on passengers, where plaintiff approaching the crossing saw a number of persons standing in the safety zone waiting for a car, the question as to whether or not he had a right to expect that the car would stop to take on said passengers was properly submitted to tbe jury, as bearing upon tbe question of plaintiff’s contributory negligence.</p>

Assumpsit by The Jennings Farms against the Watson-Higgins Milling Company for the purchase price of certain wheat. Judgment for plaintiff. Defendant brings error.

), J. George LeBeau was convicted of larceny, and sentenced to imprisonment for not less than 1 nor more than 5 years in the Detroit house of correction.

), J. Bill by John Widdicomb Company against William F. Card and others to quiet title to land. From a decree dismissing the bill, plaintiff appeals.

), J., presiding. Bill by Anthony H. Becker and another against the Lincoln Building Company for an accounting, and to enjoin an interference with the completion of a building. Defendant filed a cross-bill asking affirmative relief. From a decree for plaintiffs, defendant appeals.

), J. Assumpsit by Herman Brenner against Abe Feinburg for breach of a contract for the sale of certain paper. Judgment for defendant on a directed verdict, Plaintiff brings error.

, presiding. Petition by Albert Minoek against the Union Trust Company for the removal of defendant as guardian of the property of plaintiff. The petition was denied in the probate court, and plaintiff appealed to the circuit court. Petition .dismissed. Plaintiff brings error.

<p>Error to Wayne; Webster (Clyde L), J.</p> <p>Case by Marietta Yarington against Otto Huck and others, copartners as Huck Brothers, for personal injuries. Judgment for plaintiff. Defendants bring error.</p>

), J. Bill by Carl Gasta and another against the Farmers State Savings Bank to enjoin the foreclosure of a mortgage. From a decree for plaintiffs, defendant appeals.

), J. Case by Frederick Wortman and another against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiffs bring error.

<p>Exceptions before judgment from Gratiot; Hart (Ray), J., presiding.</p> <p>Alfred F. Crawford was convicted of embezzlement.</p>

'Error to Oakland; Rockwell (Kleber P.), J. Anson Best was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Marquette.

), J. Bill by William Van Dommelen against Johanna Van Dommelen for divorce. Defendant filed a cross-bill asking for a divorce and alimony. From a decree for defendant, plaintiff appeals.

), J. Bill by William F. Goodlove and others against Charles Hamburger and others to enjoin the violation of certain building restrictions. From the decree rendered, plaintiffs appeal.

<p>1. Criminal Law — Arson — Cross-Examination on Immaterial Matter — Appeal and Error.</p> <p>In a prosecution for arson in burning a competitor’s store, where defendant was a witness in his own behalf, cross-examination with reference to a chattel mortgage, the materiality of which is not apparent, held, not reversible error, although it might with propriety have been omitted.</p> <p>2. Same — Trial—Statement or Prosecutor.</p> <p>Where defendant had given evasive answers to the prosecutor’s Questions, the statement of the prosecutor, after obtaining a direct answer, “Yes. You would like to have them believe that all right. I consider that a distinct victory,” held, not reversible error.</p> <p>3. Same — Duty or Prosecutor.</p> <p>While the prosecuting attorney stands in a somewhat different position than private counsel, the duty being cast upon him of seeing that defendant has a fair trial, yet he is not required to he supine and is entitled to display a reasonable amount of vigor in the trial of a case so long as he does not transgress the rules of conduct required of a public officer in his position.</p> <p>4. Same — Character Witness — Collateral Issue.</p> <p>Where a character witness for defendant, on cross-examination, had stated that he had heard people say that defendant was a crook, refusal to permit him, on redireetexamination, to answer the question “Did you ever hear anything stated upon authority that would back that assertion,” held, proper; since the question as to whether those who spoke ill of defendant had any foundation in fact for their views was a collateral issue.</p> <p>5. Same — Opinion Based on Personal Dealings Inadmissible— Reputation.</p> <p>The answer of a character witness, based on his personal dealings with defendant rather than on. what other people said of him, held, properly stricken out; since reputation is based on “what people say of a man.”</p> <p>6. Same — Limiting Number of Character Witnesses — Abuse of Discretion.</p> <p>It being within the discretion of the trial judge to limit the number of character witnesses, in the trial of one accused of arson, it was not an abuse of discretion to limit the number to six.</p> <p>7. Same — Instruction — Argument of Prosecutor — Appeal and Error.</p> <p>An assignment of error attacking the argument of the prosecutor, based on a statement by the trial judge in his charge to the jury that, “the arguments of counsel have been full and fair,” held, without merit, if prosecutor’s argument may be thus attacked.</p> <p>8. Same — Accessory—Guilty Knowledge — Instruction.</p> <p>In a prosecution for arson, where there was testimony that defendant either set the fire himself or procured another to do it, an instruction that “if a person has guilty knowledge of a crime or aids and abets in that crime, but is not an active participant, he becomes a principal in the •crime and can he found guilty,” held, not misleading as giving the jury to understand that defendant was guilty if he knew that the fire was going to he set.</p>

), J., presiding. Assumpsit in justice’s court by James R. Murphy against William L. Bonewell for money had and received. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

<p>1. Appeal and Error — Supreme Court Not Trier of Facts — Evidence — Weight of Evidence.</p> <p>The Supreme Court is not the trier of the facts in law cases brought before it for review, but, under 3 Comp. Laws 1915, § 12587, if satisfied that the findings of the trial judge are against the clear weight of the evidence, reversal is authorized.</p> <p>2. Banks and Banking — Finding Justified by Evidence.</p> <p>In an action against a bank for the breach of a contract to pay out money only on checks signed and countersigned -according to agreement, the finding of the court in favor of plaintiff, held, justified by the record.</p> <p>3. Same — Evidence—Burden of Proof — Weight of Evidence.</p> <p>The burden of proof being upon defendant to establish its, claim that plaintiff had accepted another as her debtor,, and should apply certain moneys collected by her upon the-transaction in question, the finding of the court in favor of plaintiff, held, not manifestly against the clear weight of the evidence.</p> <p>4. Same — Contract—Breach of Contract — Right of Action.</p> <p>Where plaintiff made a special deposit with defendant bank in the name of E. Company, under an agreement that the money should be paid out only on checks signed by E. and countersigned by H., payment of the money on checks signed by E. alone, resulting in loss to plaintiff, held, to authorize an action by plaintiff.</p> <p>5. Same — Parties.</p> <p>Plaintiff and defendant being the contracting parties, in an action on the breach of the contract E. Company was not a necessary party.</p> <p>6. Corporations — Assumed Name — Statutes.</p> <p>Plaintiff, having contracted with defendant in her own name, was not doing business under an assumed name, and therefore is not prevented from recovering for breach of the contract by reason of her failure to comply with. the statutes in regard to doing business under an assumed name (2 Comp. Laws 1915, § 6349 et seq., as amended by Act No. 263, Pub. Acts 1919; 2 Comp. Laws 1915, § 6354 et seq.).</p>

, presiding. Bill by Emma Seifferlein against John C. Foerster and others to set aside certain deeds and to quiet title to land. Defendants filed a cross-bill, asking affirmative relief. From a decree for plaintiff, defendants appeal.

), J. Bill by Louisa Gregor against Ernest J. Olde, Jr., and others for the specific performance of a land contract and for an accounting. From a decree for plaintiff, defendants appeal.

), J. Quo warranto by Harry Youells against Vern Morrish and others to determine the validity of defendants’ election as school trustees. Judgment dismissing the writ. Plaintiff brings error.

Burget), J., presiding. Assumpsit by James A. Moynes and another against Isaac Applebaum and another for fraud in the sale of certain real estate. Judgment for plaintiffs. Defendants bring error.

), J., presiding. Assumpsit by laston Aromo and others against the Fire Association of Philadelphia on a policy of insurance. Judgment for plaintiffs on a directed verdict. Defendant brings error.

M.), J. Bill by John H. Swick and others against Howard Hartman and another to set aside a deed. Defendants filed a cross-bill to quiet title. From a decree for defendants, plaintiffs appeal.

<p>Injunction — Trade Secrets — Former Employee Will Not be Restrained from Soliciting fob Competitor Where Not Using Trade Secrets Obtained from Employer.</p> <p>Equity -will not restrain the driver of a laundry wagon, who had been working on a certain route on salary and commission, and who had severed his relations with his former employer, from working in said territory for a competitor, where he does not use any trade secrets or list of customers furnished by his former employer, but the business produced was largely the result of his own industry, and the provisions of Act No. 171, Pub. Acts 1917, are not involved.</p>

), J. Case by Jessie Day against the Grand Rapids Railway Company for personal injuries. Judgment for defendant non obstante veredicto. Plaintiff brings error.

, presiding. Habeas corpus proceedings by William Davis to obtain his release from a body execution. From an order denying a motion to amend the body execution, and discharging defendant, plaintiff brings certiorari.

Quo warranto by Mary E. Anderson and others against Fred Levin and others to determine the validity of defendants’ election as school trustees. Judgment dismissing the writ. Plaintiffs bring error.

), J. Case by George Sabin and another against John E. Southard and others for the negligent burning of plaintiffs’ barn. Judgment for plaintiffs. Defendants bring error.

), J. John Harrigan was convicted of involuntary manslaughter, and sentenced to imprisonment for not less than 5 nor more than 15 years in the State prison at Jackson.

), J., presiding. Case by Samuel Kutchai, an infant, by Ms next friend, against E. Foster Moreton, doing business as the Moreton Truck Company, for personal injuries. Judgment for plaintiff. Defendant brings error.

<p>Appeal from Muskegon; Vanderwerp (John), J.</p> <p>Bill by Hart P. French against Arthur J. Mulholland for an accounting. From a decree dismissing the bill, plaintiff appeals.</p>

Clair; Hart (Ray), J., presiding. Assumpsit by George A. L. Innis against the Fireman’s Fund Insurance Company on a policy of insuranee. Judgment for defendant non, obstante veredicto. Plaintiff brings error.

<p>Appeal from Kent; McDonald (John S.), J.</p> <p>Bill by the Stern Company against Morris Friedman, surviving partner of M. Friedman & Company, for damages for failure to exercise an option for the renewal of a lease. From a decree dismissing the bill, plaintiff appeals.</p>

), J. Ida Swenson presented for probate the last will of Anna L. Carlson, deceased. The will was allowed in the probate court, and Tillie Barrett and another appealed to the circuit court. Judgment for proponent non obstante veredicto. Contestants bring error.

<p>Error to Wayne; Dingeman (Harry J.), J.</p> <p>Assumpsit by Henry E. Bird against the St. Paul Fire & Marine Insurance Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

), J. Case by James Robertson against the United Fuel & Supply Company and William F. Wicks and Philip F. Weltin, individually and as copartners, for personal injuries. Judgment for plaintiff against defendants Wicks and Weltin on a verdict by the jury, and for defendant United Fuel & Supply Company on a directed verdict. Plaintiff brings error.

), J. Assumpsit by Frank H. McCulloch and another against John O. VonZellen and another for services rendered. Judgment for plaintiffs. Defendants bring error.

Cross-appeals from Ottawa; Cross (Orien S.), J. Bill by Frank Vanek and another against John Soumar and another for the cancellation of a mortgage given upon an exchange of certain real properties. From the decree rendered, all parties appeal.

), J. Andrew Genther was convicted of robbery while armed, and sentenced to imprisonment for not less than 10 nor more than 20 years in the State prison at Jackson.

Mandamus by the city commission of the city of Jackson to compel Clifton H. Redder, city clerk, to comply with the order of plaintiff relative to the issuance of certain bonds. From an order granting the writ, defendant brings certiorari.

), J. Bill by Fred A. Henry against George M. Sinclair and another to enjoin the obstruction of certain driveways. From a decree for plaintiff, defendants appeal.

, presiding. Bill by the Workers’ Educational Association against Albert Renner and others for an injunction. From a decree dismissing the bill, plaintiff appeals.

), J. Bill by the Pere Marquette Railway Company against the Michigan Public Utilities Commission and the Detroit United Railway, to set aside an order respecting certain crossings. From a decree for defendants, plaintiff appeals.

The Detroit United Railway filed a petition with the Michigan Public Utilities Commission for an order respecting certain crossings. From the order made, the Michigan Air Line Railway and the Detroit, Grand Haven & Milwaukee Railway Company bring certiorari.

Peter Fritz presented his claim for compensation against the Rudy Furnace Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the State Accident Fund, insurer, bring certiorari.

Esther C. Hulswit and others presented their claim against the Escanaba Manufacturing Company for the accidental death of their decedent in defendant’s employ. From an order awarding compensation, defendant brings certiorari.

Joseph Letourneau presented his claim for compensation against James Davidson for injuries received in defendant’s employ. From an order reducing the payments under an award, plaintiff brings certiorari.

Abram Carvey presented his claim against W. D. Young & Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Lumbermen’s Mutual Casualty Company, insurer, bring certiorari.

Olive Allen presented her claim for compensation against the Robert Gage Coal Company for the accidental death of her husband in the defendant’s employ. From an order awarding compensation, defendant brings certiorari.

), J. Case by Oliver Buell, administrator of the estate of Ernest Vun Cannon, deceased, against Walker D. Hines, director general of railroads, operating the Pere Marquette Railway Company, for the alleged negligent killing of plaintiff’s intestate. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Wayne; Goff (John H.), J.</p> <p>Assumpsit by Sarah Dunwoody against the Royal Indemnity Company on a policy of insurance. Judgment for plaintiff. Defendant brings error.</p>

Assumpsit by the Michigan Employers Casualty Company, as insurer of an employer, for the amount paid to an injured employee under the workmen’s compensation act, against Joseph Doucette, alleged wrongdoer. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J., presiding. Case by George P. Frebes against the Michigan Central Railroad Company for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.

), J., presiding. Bill by the Flint P. Smith Building Company against the Industrial Savings Bank to set aside an award of arbitration, and to determine the rent to be paid under a lease. From a decree for plaintiff, defendant appeals.

Cross-appeals from Muskegon; Davis (Frank D. M.), J., presiding. Bill by Caroline Torrent against Squire E. Torrent and others to set aside certain deeds. From the decree rendered, plaintiff and certain defendants appeal.

, presiding. Bill by Arthur J. Vhay and another against Anna Gies to set aside certain deeds. From a decree for plaintiffs, defendant appeals.

), J. Bill by Harry Melconian and others against the city of Grand Rapids to enjoin the enforcement of an ordinance. From a decree for plaintiffs, defendant appeals.

), J. Bill by the city of Grand Rapids against the Consumers Power Company to enjoin the charging and collecting of certain rates. From a decree dismissing the bill, plaintiff appeals.

<p>Appeal from Livingston; Collins (Joseph H.), J.</p> <p>Bill by Rosa Geary against William Geary and another to set aside a deed. From the decree rendered, defendants appeal.</p>

<p>1. Intoxicating Liquor — Criminal Law — Variance—“Time” of Offense — Videlicet—Cubing Error. — Instructions.</p> <p>In a prosecution for violation of the liquor law, where defendant was charged with selling and keeping for sale, giving and furnishing and having possession of intoxicating liquors on July 4, 1921, the allegation of “time” being made under a videlicet, if the admission of testimony as to a sale made on July 3d was erroneous, the error was cured by the instruction of the court to the jury to disregard same; time not being of the essence of the offense.</p> <p>2. Same — Misconduct of Counsel — Curing Error — Instructions.</p> <p>Where defendant’s counsel kept insisting that the prosecutor was asking leading questions of a certain witness, a statement by the latter “Now, just a minute, witness, I insist that this is a hostile witness and I have a right— I have a statement in a John Doe proceeding. I know what I am up against in liquor cases and I am not going to stand for it at all,” 'held, although improper, not prejudicial error, in view of the instruction of the court to the jury that the statement was improper and to disregard it.</p> <p>3. Same — Evidence—Sufficiency—Directed Verdict.</p> <p>Where the testimony offered, if believed, would justify the jury in finding defendant guilty of the offense charged, the court was not in error In refusing to direct a verdict .in his behalf.</p> <p>4. Same — Argument of Counsel — Penalty for Offense No Concern of Jury — Instructions.</p> <p>Where defendant’s counsel argued to the jury that they should not separate defendant from his wife and send him to a felon’s cell, the court properly instructed them that they were not concerned in the penalty, and should not be influenced thereby.</p>

), J. Case by Morley R. Wickett, an infant, by his next friend, against the Detroit United Railway for personal injuries. . Judgment for plaintiff. Defendant brings error.

), J., presiding. Bill by Albert Nowatarski against Marcel Dusza and others to set aside a judgment of ouster, and for an accounting. From a decree for plaintiff, defendants appeal.

), J., presiding. Bill by Julia E. Jones against Flora B. Snyder and others for a partition of certain real property. From a decree dismissing the bill, plaintiff appeals.

), J., presiding. Assumpsit by Orrin N. Hughitt and others, co-partners as A. J. Hughitt & Sons, against Joseph E. Sayen on certain promissory notes. Judgment for defendant. Plaintiffs bring error.

Case by Mary Ricketts, administratrix of the estate of Alexander W. Ricketts, deceased, against Edward A. Froehlich for the alleged negligent killing of plaintiffs intestate. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>Error to Wayne; Barton (Joseph), J., presiding.</p> <p>Assumpsit by Harry C. Moulthrop against the city of Detroit for rent. Judgment for plaintiff. Defendant brings error.</p>

), J. Bill by Fielder Sanders and others against A. J. Detlaff for an accounting and the foreclosure of a land contract. From the decree rendered, all parties appeal.

), J. Bill by John Komarynski and others against Andrew Popovich and others for an injunction and an accounting. From a decree dismissing the bill, plaintiffs appeal.

), J. Assumpsit by the Grand Rapids Bedding Company against the Grand Rapids Furniture Temple Company for the amount of an award against plaintiff under the workmen’s compensation act. Judgment for plaintiff. Defendant brings error.

<p>Error to recorder’s court of Detroit; Marsh (Pliny W.), J.</p> <p>George Wirth was convicted of violating the automobile law.</p>

), J., presiding. Assumpsit in justice’s court by Albert Kuchenmeister against. Marcel J. Dusza for money had and received. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant on a directed verdict. Plaintiff brings error.

Mandamus by Charles Flowers and another to compel Charles E. White, acting circuit judge of Wayne county, to set aside an order granting a motion to vacate an order granting a rehearing.

<p>1. Railroads — Negligence—Gross Negligence — Evidence — Sufficiency — Weight of Testimony for Jury.</p> <p>In an .action for personal injuries caused to plaintiff •when he was struck at a street crossing by defendant’s locomotive, testimony that when plaintiff entered upon the. track the engine was 176 feet away, running at the rate of 12 miles an hour, and that plaintiff’s foot was caught in the defective planking preventing his escape, held, to justify submission to the jury of the question of defendant’s gross or subsequent negligence, although there was contradictory testimony to the effect that the engine was. only “seven steps” distant when he entered upon the track; the; weight of the testimony being for the jury.</p> <p>2. Same — Gross Negligence — Contributory Negligence.</p> <p>If defendant is chargeable with subsequent negligence, the fact that plaintiff’s danger arose in the first instance because of his own negligence does not prevent his recovery.</p> <p>3. Same — Contributory Negligence — Question for Jury.</p> <p>It cannot be said, as a matter of law, that plaintiff was guilty of contributory negligence in attempting to walk across a track in front of a train 176 feet distant approaching at the rate of 12 miles an hour.</p> <p>4. Same — Pleading—Negligence—-Defective Crossing.</p> <p>An averment of negligence in the declaration “that the planking between the rails of said tracks was so laid that a pedestrian could have his feet caught between the rails and said planking,” held, sufficient to aver defective construction of the crossing.</p> <p>5. Same — Evidence—Inferences.</p> <p>Evidence as to said defective crossing, while .not positive, and lacking in detail, held, sufficient from which the jury might infer defective construction and consequent negligence of defendant.</p>

), J. Bill by the village of North Adams against Clyde S. Wertz to enjoin the installation of a gasoline filling station. From a decree for plaintiff, defendant appeals.

), J. Mary Metz presented a claim against the estate of Samuel S. Corl, deceased, based on a contract of guarantyship. The claim was disallowed by the commissioners, and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings error.

<p>Street Railways — Negligence—Contributory Negligence — Evidence — Question for Jury.</p> <p>In an action for damages to plaintiff’s automobile caused by being struck by one of defendant’s cars, where it appears that when plaintiff drove out of bis yard in the morning defendant’s workmen bad tbe plank crossing in front of plaintiff’s premises torn up for repair, that' lie used a crossing a little to the north, that when he re-: turned in the evening, nearly dark, the northerly crossing was torn out and the one opposite his premises was smooth and had the appearance of being finished, hut when he got onto it he discovered one piece of planking was out, and his car stalled and was struck before he could get it out, it cannot be said that plaintiff was guilty of contributory negligence, as a matter of law.</p>

<p>1. Criminal Law — Evidence—'Self-Serving Statements — Falsity —Admissibility.</p> <p>Self-serving statements made by or for the accused out of court, explaining suspicious circumstances, may be proved against him, and their falsity may be shown; the fact of their falsity admitting them as indicating an attempt to explain away incriminating circumstances by falsehoods.</p> <p>2. Same — Burglary.</p> <p>In a prosecution for burglary, a conversation between defendant and the police justice, in which defendant claimed that he could not have been at the scene of the crime at the time charged because he was in Detroit that day and voted, and that he finally admitted to the judge that he was lying, held, properly admitted.</p> <p>S. Same — Admissibility* Not Dependent upon Falsity.</p> <p>The admissibility of said self-serving statement, held, not to depend upon its falsity,</p> <p>4. Same — Admissibility Not Dependent Upon Defendant’s Taking the Stand.</p> <p>The fact that defendant did not take the stand in his own. behalf would not make said statement inadmissible.</p> <p>5. Same — Evidence—Public Records — Absence of Record — Parol Testimony — Admissibility.</p> <p>Testimony by the sheriff that he had examined the poll lists at the precinct in Detroit where defendant stated he had voted on the day in question, and that the records did not show that defendant had voted as he represented, held-, not open to the objection that said testimony was inadmissible as parol testimony of the contents of a public record, since the witness did not testify as to the contents of a record! but of the want of any record.</p> <p>6. Same — Evidence—Circumstantial Evidence — Sufficiency.</p> <p>Although the testimony against defendant was largely circumstantial, it is held, sufficient to justify the trial court in refusing to direct a verdict in his favor.</p>

<p>Error to Wayne; Goff (John H.), J.</p> <p>Case by Alice Steele against James Hamilton for personal injuries. Judgment for plaintiff. Defendant brings error.</p>

<p>1. Criminal Law — Assault With Intent to Rape — Evidence— Admissibility — Other Oeeenses.</p> <p>In a prosecution for assault with intent to commit rape, testimony that on the day of the commission of the offense charged defendant attempted to fuss with or take advantage of a young girl, held, inadmissible.</p> <p>2. Same — Trial—Conduct oe Prosecutor.</p> <p>The action of the prosecutor in asking a witness, after she had testified that she knew defendant and that he had dinner at her home on the day in question, whether anything occurred that day with reference to her daughter, held, reversible error, although the question was not answered, since the question was well calculated to, and probably did, prejudice the defendant in the minds of the jury.</p> <p>3. Same — Argument oe Prosecutor — Failure to Call Witness Subject to Comment.</p> <p>Where defendant had testified to being with certain persons on the day in question, comment by the prosecutor, in his argument to the jury, on defendant’s failure to produce said persons as witnesses to corroborate his story, held, not error.</p> <p>4. Same.</p> <p>The provisions of the statute (3 Comp. Laws 1915, § 12552) protecting defendant from comment or criticism for not taking the witness stand in his own behalf is not extended to other witnesses who may know facts which would be helpful to defendant in making his defense, and his failure to produce them, if competent and within reach, is properly the subject of comment by the prosecutor.</p>

<p>1. Criminal Law — Rape—¿Evidence—Husband and Wipe — Admissibility op Statement by Wipe — Witnesses.</p> <p>In. a prosecution for attempted rape, the aetion of the prosecutor in calling defendant’s attention to a paper containing a statement made by his wife and asking him if he did not make the admissions to her contained therein, was reversible error under 3 Comp. Laws 1915, § 12555, providing that neither spouse may testify as to any communication made by one to the other without the consent of both, since the prosecutor’s action was but an attempt to get before the jury in ail indirect way testimony made incompetent by the statute.</p> <p>2. Same — Evidence—Sufficiency—Question for Jury.</p> <p>Evidence as to, defendant’s guilt, held, sufficient to present an issue of fact for the jury.</p> <p>3. Same — Trial—Instructions—Requested Instructions — Good Character.</p> <p>Modification by the court of a requested instruction as to good reputation to make it more applicable to the testimony in the case and the claims of defendant, held, not error.</p> <p>4. Same — Witnesses—Husband May Not be Cross-Examined as to Communication to Wife.</p> <p>A defendant in a criminal case may not be cross-examined as to confidential communications made by him to his wife relative to the charge against him.</p>

<p>1. Intoxicating Liquors — Criminal Law — Admissions.</p> <p>In a prosecution for violation of the liquor law, where defendant admitted that he sold a quart of whisky, the trial court was justified in instructing the jury that it was their duty to convict him.</p> <p>2. Same — Inducement to Commit Crime — Nature of Inducement.</p> <p>The acts of the officers of the law in gaining the confidence of defendant and inducing him to sell them the liquor did not constitute an unlawful inducement, justifying his acquittal, since it is only when the criminality of the act is shown to he absent by the fact of the inducement that such proof justifies acquittal/</p>

<p>Exceptions before judgment from Jackson; Parkinson (James A.), J.</p> <p>Henry Schiddel was convicted of violating the liquor law.</p>

<p>1. Negligence — Personal Injuries — -Evidence—Burden of Proof.</p> <p>In an action against R. and B., as individuals and as doing business as a company, for personal injuries caused, by an automobile driven by R., but alleged to be owned by defendants and operated in tbeir business, the burden of proof is upon plaintiff to show the liability of B.</p> <p>2. Same — New Trial — Evidence—Great Weight of Evidence.</p> <p>Where the only testimony connecting B. with the ownership or operation, of the car was the testimony of plaintiff’s brother that B. said R. was working for him, which statement B. denied, and both B. and R. testified that R. was 'not in B.’s employ, and R. further testified that he was the owner of the car and the license was in his name, a verdict against B. is held, to be against the great weight of the evidence.</p>

), J. Bill by Nick Baas and others against Kate Zinke and others to set aside an agreement regarding the probate of a will, and certain conveyances made pursuant to such agreement. From a decree dismissing the bill, plaintiffs appeal.

), J. Bill by William G. Meade against Joseph R. Brown and another for the specific performance of an optional land contract. From a decree for plaintiff, defendants appeal.

<p>Error to Wayne; Mayne (Frederick W.), J., presiding.</p> <p>Case by Stephen Rucklich against the American Car & Foundry Company for damage to a building. • Judg.ment for plaintiff. Defendant brings error.</p>

<p>Error to Wayne; Tappan (Harvey), J., presiding.</p> <p>Replevin by Morris Robbins against the Simons Sales Company for the possession of an automobile. Judgment for defendant. Plaintiff brings error.</p>

), J. Assumpsit in justice’s court by the General Electrical Engineering Company against John' B. Brumm for the amount of an open account. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.

), J., presiding. Assumpsit by David Rott against the Westchester Fire Insurance Company on a policy of insurance. Judgment for defendant non obstante veredicto. Plaintiff brings error.

), J. Bill by Frank Altfather against Augusta Bloom and others for an accounting and to set aside a deed. From a decree dismissing the bill, plaintiff appeals.

), J. Bill by John LaLonde and another against Antoinette Bloom for the specific performance of a land contract. From the decree rendered, all parties appeal.

<p>Exceptions before judgment from Ottawa; Cross (Orien S.), J.</p> <p>William Foreman was convicted of violating the liquor law.</p>

<p>Error to Wayne; Webster (Arthur), J.</p> <p>Assumpsit by Oscar A. Loew against the Hayes Manufacturing Company for breach of a contract of employment. Judgment for plaintiff. Defendant brings error.</p>

), J. Summary proceedings by Elburtus L. Struble against the Community Club and another for the possession of leased premises. There was judgment for plaintiff, and defendants appealed to the circuit court. Judgment for defendants on a directed verdict. Plaintiff brings error.

), J. Bill by Eliza A. Roark against the Citizens Bank of Saline and others to require the payment to plaintiff of a certain sum paid into defendant bank. From a decree for defendants, plaintiff appeals.

), J. Bill by Harriet W. Granger, executrix of the last will of Stanley R. Granger, deceased, and others against John L. Duryea and others for a construction of the last will of Mary J. Granger, deceased. From a decree for defendants, plaintiffs appeal.

), J. Assumpsit by Samuel Symons against the Greenwood, Atkinson, Armstrong Company for goods sold’, and delivered. Judgment for plaintiff on a directed: verdict. Defendant brings error.

), J. Bill by A. B. Parmalee and others against Charles Morris to enjoin the violation of certain real estate restrictions. From a decree for plaintiffs, defendant appeals.

), J. Adolph. Gengels was convicted of statutory rape, and sentenced to imprisonment for not less than 2 nor more than 5 years in the house of correction at Ionia. '

<p>1. Criminal Law — Physicians and Surgeons — Illegally Practicing as A Chiropractor — Information—Duplicity—Amendment.</p> <p>In a prosecution for violating the provisions of Act No. 237, Pub. Acts 1899, as amended, by engaging as a chiropractor in treating human ailments and diseases without having filed a certificate of registration or copy thereof with the county clerk, as required, it was not error for the trial court to deny defendant’s motion to quash the information for duplicity, where the prosecutor, after being required to elect, moved to amend, and the court ordered the information, so amended and struck out what then became surplusage.</p> <p>2. Same — Original Statute Unaffected by Void Amendment.</p> <p>Even if Act No. 368, Pub. Acts 1913, amending Act No. 237, Pub. Acts 1899, is unconstitutional because in authorizing the State medical examining board to grant certificates of registration to those applying it is unreasonable, arbitrary, and discriminatory, defendant may still stand convicted of violating the provisions of said original act in practicing as a drugless healer for hire and reward without having filed a certificate of registration with the clerk of the county where he resides as required by said act.</p> <p>3. Same — Merits of System of Healing Question for Legislature.</p> <p>The question of the merits of a system of healing pursued for profit is for the legislative body which enacts the laws regulating its practice, and not for the courts.</p> <p>•4. Same — Uncontradicted Facts Presented Question of Law— Construction for Court.</p> <p>Where the testimony of uncontradicted witnesses showed that defendant admitted he was not registered as a chiropractor, that he had not filed a certificate of registration with tha clerk of the county in which he resided and that during the period alleged he had treated various affected persons for hire, the trial court was not in error .in instructing the jury that it was their duty to find defendant guilty as charged, since the undisputed facts presented a question of law for the court which was rightly construed.</p>

<p>Error to Muskegon; Vanderwerp (John), J.</p> <p>Assumpsit by Agnes M. Quinn against the New York Life Insurance Company on a policy of insurance. Judgment for defendant non obstante veredicto. Plaintiff brings error.</p>

<p>1. Justices oe the Peace — Appeal from Justice’s Court — Duty of Appellant to Perfect Incomplete Return.</p> <p>On appeal from a judgment in justice’s court, the duty is on appellant, if the justice’s return is defective or incomplete, to perfect same or abide the judgment as it stood.</p> <p>2. Same — Motion to Dismiss Appeal — Incomplete Return.</p> <p>Where it is conceded that the justice’s return was incomplete, and appellant took no steps to perfect same within a reasonable time, appellee’s motion to dismiss the appeal should have been granted.</p> <p>3. Same — Estoppel.</p> <p>Appellee was not estopped from moving to dismiss the appeal by reason of his counsel’s inapt proposal that if it devolved upon him to perfect the appeal, permission be granted him to make the amendment and then proceed to trial immediately, where his suggestion was not acquiesced in by the court.</p> <p>4. Mandamus — Motion to Dismiss Appeal — Practice—Judicature Act.</p> <p>Under the judicature act (3 Comp. Laws 1915, § 13438), it was not necessary fon appellee to first apply to the trial court to set aside the order denying dismissal before petitioning for mandamus to compel its vacation.</p>

<p>1. Intoxicating Liquors — 'Search Warrant — Jurisdiction.</p> <p>In a prosecution for violating the liquor law, where the affidavit upon which the search warrant was Issued contained positive averment of facts justifying the issuance of the writ, the jurisdiction of the magistrate to issue it was not lost by proof aliunde that the facts therein positively stated were in reality upon information and belief.</p> <p>2. Same — Criminal Law — Information — Where Two Distinct Offenses Charged Election Required.</p> <p>Where the information charged, in the first count, that defendant, on the 26th day of July, 1921, unlawfully had in his possession prohibited liquors, “to wit, two gallons of moonshine whisky so-called,” and in the second count, that defendant on the same date sold to a certain person “one pint of moonshine whisky so-called,” but the proofs showed that the sale alleged was made on July 24, 1921, the trial court was in error in not requiring the prosecutor to elect on winch, count lie would go to the jury, since the proofs showed two separate and distinct offenses, requiring different proof.</p>

), J. Bill by the Ypsilanti Lumber & Coal Company against Wallace Leslie and others to foreclose a mechanics’ lien. From a decree for plaintiff, certain defendants appeal.

Garnishment proceedings in justice’s court by James Selby against Anna Brading, principal, and the Amazon Knitting Company, garnishee defendant. There was judgment for plaintiff, and the garnishee defendant appealed to the circuit court. Judgment for garnishee defendant. Plaintiff brings error.

), J. Case by Hugh G. Jones, an infant, by his next friend, against the Detroit Taxicab & Transfer Company for personal injuries. Judgment for plaintiff. Defendant brings error. Plaintiff, 4 years and 4 months old, was struck by a' taxicab in the street in front of his parents' home, No. 71 Marantette street, in the city of Detroit. He was carried into the house, hurried to a hospital, where he remained some time.

), J. Bill by Hannah Kerr and Peter Morton against Maggie McHeney and another to set aside a deed. From a decree for plaintiffs, defendants appeal.

Case by Agnes M. Quinn, administratrix of the estate of Leo J. Quinn, deceased, against Martha Eaton Bradley for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.

<p>1. Deeds — Cancellation op Instruments — Escrows—Conditional Delivery.</p> <p>In a suit by a father to set aside a deed conveying 80 acres of land to defendant son, evidence held, sufficient to justify the finding of the court below that the deed was placed in escrow with the condition that it became effective only in case plaintiff did not return safely from, an extended visit to Chicago.</p> <p>2. Appeal and Error — Chancery Cases on Appeal Heard De Novo.</p> <p>Although the Supreme Court hears chancery cases de) novo, upon appeal from the decree of the court below,, where it is not persuaded that a different result upon, the facts should have been reached, its decree will be, affirmed.</p>

<p>Exceptions before judgment from Calhoun; North (Walter H.), J.</p> <p>Nettie Thrine was convicted of violating a city ordinance.</p>

<p>Error to Kent; Perkins (Willis B.), J.</p> <p>Assumpsit by the Marine Trust Company of Buffalo against Michael Roden and others as indorsers on a promissory note. Judgment for plaintiff. Defendants bring error.</p>

), J. Minnie Williams was convicted of larceny, and sentenced to imprisonment for not less than 2% nor more than 5 years in the Detroit house of correction.