Volume 64 — Michigan Reports

(Stevens, J.) Bill filed to set aside deeds, and for other purposes. Defendants appeal. The facts are stated in the opinion.

(Gage, J.) Bill filed to enjoin the working of an abandoned highway. Complainant' appeals. The facts are stated in the opinion.

(Tuttle, J.) Bill for an accounting by trustees. Defendants Winchester and Wasey appeal. The facts are stated in the opinion, and in former report of same case, found in 52 Mich. 174.

<p>Appeal from Barry. (Hooker, J.)</p> <p>Bill to enjoin overflow of complainant’s land, etc. Defendant appeals.</p> <p>The facts are stated in ■the opinion.</p>

<p>Appeal from Berrien. (Smith, J.)</p> <p>Bill to compel conveyance of land. Defendant appeals-</p> <p>The facts are-stated in the opinion.</p>

<p>Appeal from Houghton. (Williams, J.)</p> <p>Bill for divorce. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Manistee. (Judkins, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts-are stated in the opinion.</p>

(Judkins, J.) Bill to set aside a sale of pine land by executors for fraud. Complainants appeal. The facts are stated in the opinion.

<p>Rehearing — When not grantable.</p> <p>1. A rehearing on the same facts and legal controversy is not properly grantable, unless there has been some very peculiar assumption or defect on the first hearing, by which the Court and parties have been misled, and the case must be an extraordinary one in which the appellate Court can properly reVoke its decision on any other .ground.</p> <p>2. Counsel are expected to present in one argument what there is to be presented,and the court will act on the whole record, or so much of it as is material.</p> <p>8. It was not contemplated by the adoption of Supreme Court rule No. 62, directing how motions for rehearing should be presented, to relax the former practice.1</p>

(Stíckney, J.) Bill to restrain the prosecution of 21 ejectment suits. Demurrer, for multifariousness in the misjoinder of unconnected causes of action, sustained, and bill dismissed. The facts are stated in the opinion.

(Stiekney, J.) Bill to enjoin prosecution of ejectment suits. Complainants appeal from decree dismissing bill as multifarious- The facts are stated in the opinion.

<p>Error to Mecosta. (Fuller, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are •stated in the opinion.</p>

<p>Appeal from Ingham. (Gridley, J.)</p> <p>Bill to cancel contract for fraud. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Newaygo. (Fuller, J.)</p> <p>Bill to enjoin a threatened trespass. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Bay. (Green, J.)</p> <p>Trover. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Lenawee. (Howell, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Saginaw. (Gage, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to St. Olair. (Stevens, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal law — Homicide—Evidence—Hypothetical questions — Written statement of respondent — Requests to charge.</p> <p>Respondent was convicted of the murder of one of his twin children, both of whom were well and healthy on the evening before their death, and were placed in the same crib by the mother, who, with the respondent and the children, were the sole occupants of the house that night. In the morning respondent arose first, and ■ the children were found to be dead, having evidently been killed by violence, their faces being bloody, skulls crushed, and blood issuing from the nose and mouth of each. A post mortem examination was had, and respondent arrested for the murder of the larger child. On the trial the prosecution proceeded on the theory that respondent left his bed during the night, and killed the infants by crushing their heads and compressing their mouths and nostrils until strangulation became complete and life extinct. No explanation was given by respondent of the death of the children, he not being sworn, but making a statement to the prosecuting attorney, which was introduced in evidence by the people, in which he did not deny the homicide,' except inferentially. A careful examination of the opinion being essential to a correct' understanding of the points decided, they will be only suggested as follows:</p> <p>1. There was no error in permitting certain hypothetical questions to be put to the physicians, the facts assumed as a basis therefor being fully supported by the testimony given, and the questions being relevant and competent.</p> <p>2. Answers to hypothetical questions, and the weight given to them by the jury, are dependent upon the jury’s finding the facts assumed in such questions to be true.</p> <p>8. Under the testimony in this case, it was competent for the prosecution to give testimony tending to show that the smaller infant was killed on the same occasion as the larger one, for whose murder respondent was tried, that it was a part of the same transaction, and that the circumstances of such killing were the same (see opinion p. 157).</p> <p>4. Where the purpose of counsel in offering certain testimony proves not to be the true one, but the testimony is admissible on other grounds, its admission is not error, if given the proper direction by the charge.</p> <p>5. Where a respondent is charged with the murder of his infant child, his statements and language concerning the deceased, tending to show his motives and the inducement to the alleged act, are competent evidence against him.</p> <p>6. Where the statements of the wife of a respondent on trial for the murder of his child, made in his presence immediately after the discovery of its death, and at the house where it occurred, regarding the manner of such death, which statements were necessary to a full understanding of what was said by the respondent, were admitted in evidence, the wife not being sworn,—</p> <p>Held, not an encroachment on the statute prohibiting a wife from testifying against her husband, the facts queried after being a part of the res gestee.</p> <p>7. Where a respondent made a written statement to the prosecutor g attorney regarding the alleged murder of his child, he and his wife, who was not sworn, being the only persons having an opportunity of knowing all the facts connected with the tragedy, and a full examination of the manner in which the statement was obtained showing no undue influence in its procurement, the disclosures made upon the subject being uncontradicted,— Held, that under the circumstances it was admissible on the trial, on the part of the prosecution.</p> <p>8. On a trial for homicide the respondent requested the court to charge the jury that, “to warrant a conviction, the circumstances ought fully to preclude all possibility that any other person could have committed the crime.”</p> <p>Held, properly refused.</p> <p>9. On atrial for homicide the respondent’s counsel requested the court to charge the jury that “ the circumstances may create a probable ground for presuming guilt; but each and every circumstance, severally or united, are no more than inconclusive probabilities, and do not warrant conviction.”</p> <p>Held, that the request substantially required the court to direct the verdict of the jury, and was properly refused.</p>

<p>Highways — Discontinuance by non-user — Adverse possession — Width of highway by user.</p> <p>A highway can be partially discontinued by non-user, and stands, as against long (adverse) possession, no better than any other property; and a highway by user only is measured, as to its width, by such use.</p> <p>So held, where a highway through plaintiff’s farm was less than four rods wide as used, the remainder of the land within that- limit having never been opened to the public, but fenced and cultivated by the land-owner for thirty years as his private property.</p> <p>Held, further, that such facts were sufficient to rebut any presumption of donation or dedication of such unopened land to the public, and conclusive evidence of an intention to restrict the road to the traveled strip outside of the land-owner’s fences.</p> <p>Held, further, that How. Stat. § 1815, fixing the width of highways by user at four rods, cannot change such vested rights.</p>

<p>Error to Muskegon. (Rússell, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Landlord and tenant — Forfeiture of lease — Re-entry—Demand for payment of rent — Equity.</p> <p>1. A lessor, upon the failure of the lessee to pay rent, took peaceable possession of the leased premises under a clause in the lease providing for a re-entry in case of such non-payment, without any previous notice whatever, and declaring that thereafter the lease should be absolutely void.</p> <p>Held, that no demand for rent was necessary before such re-entry, which was the mode agreed upon for declaring the forfeiture of the lease, and that the lessor had the right, and it was his duty in the first instance, to resort to such re-entry, and, if prevented, it was his privilege to adopt any other lawful mode, and take the statutory or any other appropriate proceeding to obtain such possession.</p> <p>2. The demand for payment of rent, required by How. Stat. § 8295, and at common law, as a condition precedent to a re-entry, may be waived by the parties.</p> <p>3. The party entitled to the possession of property has a right to take it in any manner not constituting a breach of the peace, and it was never the design of How. Stat. §8295, to take away this right.</p> <p>4. "Where no provision is made in a lease for the mode of its forfeiture, or of notice of the lessor’s election to forfeit it, he must proceed according to the recognized rules of the common law, as modified by How. Stat. § 8295.</p> <p>5. The receipt of rent, after the forfeiture of a lease for its non-payment, unless fully paid, is not a waiver of such forfeiture.</p> <p>6. A bill filed to remove a cloud caused by the claims of a lessee under a lease alleged to have been forfeited, and asking thát the court ascertain if such forfeiture is complete, and, if so, remove the cloud, is not open to the objection that equity will never enforce a penalty or forfeiture.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Replevin. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Calhoun. (Hooker, J.)</p> <p>Assumpsit. Defendant Cameron brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Injury from coupling cars — Directing verdict.</p> <p>In this case the action of the circuit judge in directing a verdict for defendant on account of the negligence of plaintiff is sustained. For facts see opinion.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Fraudulent sale — Evidence—Proof of subsequent acts.</p> <p>In order to avoid a sale as fraudulent, the fraud must have existed when the property was sold; but it is quite possible to establish such fraud by proof of subsequent acts throwing light on the transaction and what was done before the sale assailed as fraudulent.</p>

<p>Error to Montcalm. (Smith, J.)</p> <p>Attachment. Defendant brings error.</p> <p>The-facts are stated in the opinion.</p>

<p>Negligence — Directing verdict — Alighting from moving train — Contributory negligence.</p> <p>1. Where, in a suit for damages for injuries sustained by the alleged negligence of a railroad company, the court directed a verdict for the defendant on the ground of contributory negligence on the part of the plaintiff,—</p> <p>Held, that the plaintiff had a right to have his own side of the controversy assumed to be true, unaffected by counter-proofs.</p> <p>2. A passenger on a railway train was near the car door when his station was called, and, as soon as the train stopped, arose and moved out, preceded by one person and followed by two others. On reaching the door he went out, and down the steps on the platform side, and, when he stepped off, fell and received the injury for which suit is brought. He got out as fast as he could, and the cars moved off before he could get off. There was testimony to the effect that the conductor seized plaintiff’s coat, and held it while he alighted.</p> <p>Held, that in order to make plaintiff necessarily negligent, he must, as in other cases, decide upon facts as they appear, as a man of ordinary care would do under the same circumstances. It is not right of any passenger to run evident risks to his safety; but the rule of prudence binding on him, must be that which, under just such circumstances, would restrain all men of ordinary prudence. If the mind of an ordinarily prudent man would be impressed with a belief of danger, he has no right to incur the danger; but if the danger would not be apparent, he is not negligent in acting on that assumption. Precedents cannot aid the Court very much, where a few differences in the surroundings may make a great difference in the dangers. The principle stated is what all courts agree on, and it must stand as the rule by which to be guided.</p> <p>Held, further, that the trial court had no right to determine that the speed of the cars was such that plaintiff was bound, as he was situated, to refrain from getting off, or that the getting off unhindered would probably have caused the mischief, but the case should have been submitted to the jury.</p> <p>[This case was again before the Court at the October term, 1887 (34 N. W. Rep. 712), and a summary of the briefs qf counsel, with authorities cited, will appear with the later opinion in the ease. — Reporter.]</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Fraudulent conveyances — Evidence—Simultaneous transactions— Objection to evidence — Practice in Supreme Court.</p> <p>1. In a suit for the value of merchandise seized on attachment, the files and records in the attachment suit were offered in evidence by the defendant, and objected to as immaterial, no suggestion being made that they were informal or defective, and the case went to the jury on the theory that proper attachment proceedings were made out.</p> <p>Held, that the objection could not be widened in the appellate court, the evidence being material to the defense, and that the proceedings will be presumed regular in that court.</p> <p>2. A firm executed two chattel mortgages on their stock of goods on the same day. One of the mortgagees acted as a friendly adviser of the mortgagors' in ' the transaction, had the mortgages recorded, and delivered to the other mortgagees their security; and at same time wrote a letter in their store, advising the mortgagors to represent to creditors that they owed the full face of the mortgages, and that the writer procured the other mortgage because his firm had guarantied to the amount of the debt secured thereby. As a matter of fact, each mortgage was in excess of the actual indebtedness. There was an understanding between the two mortgagees that each, in case of emergency, was to look out for the security of the other. On the trial of a suit in trover, brought by the mortgagees non-active in securing the mortgages, against attaching creditors,—</p> <p>Held, that inquiries concerning the details and intent of the transactions attending the making of both mortgages were proper, it being a single scheme, so far as the mortgagors were concerned, whether right or wrong, and it cannot be said that any part of it did not bear upon the rest; that it was important to know their intent and that of the mortgagee who was active in securing the mortgages, and competent to prove their fraud, if any was intended, and their purpose, whatever it was.</p> <p>Held, further, that the letter written to the mortgagors was properly admitted in evidence as a part of the cross-examination of the mortgagee who wrote it, it being within the lines of his examination, and important, not only as part of the series of transactions, but also to test the accuracy of his memory or his veracity, being admissible for either purpose. Eor further discussion of this branch of the case, see opinion, pp. 229-231.</p>

<p>Divorce — Extreme cruelty — Non-support.</p> <p>Where the testimony in a divorce case showed that, during the year the parties lived together, the husband, being of sufficient ability, furnished but two dollars and fifty cents for the support of his wife, and that during ten months of the year he was in the habit of cursing and swearing at her, and using vile and indecent names, in the presence of her children, to one of whom he gave a flogging, and frequently threatened to drive them away from home, and finally told his wife he would live with her no longer, and drove her from the house,—</p> <p>Held, sufficient to entitle the wife to a divorce for failure to support and for cruel treatment, within the meaning of How. Stat. § 6229.</p>

(Smith, J.) Claim filed under How. Stat. § 8747, allowed, and assigneeordered to recognize claim in paying dividends to creditors. Assignee brings error by order of circuit judge. The facts are stated in the opinion, and in 59 Mich. 179.

<p>Promissory note — Agreement for payment of sum on performance of work.</p> <p>A written agreement to pay a fixed sum of money on or before a given date, upon completion of certain specified work agreed to be performed for the payor by the payee, is not a promissory note, and no recovery can be had thereon without proof of such performance.1</p>

<p>Error to Shiawassee. (Newton, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Certiorari to highway commissioner to review award of damages in laying out a highway.</p> <p>The facts are stated in the opinion.</p>

<p>Justices of the peace — Attachment—Non-appearance of defendant— Sufficiency of docket entry — Dissolution of attachment.</p> <p>1. In a suit commenced in justice’s court by attachment, where the defendant is not personally served and does not appear, it is not important in what way the plaintiff appears on the return-day, as the statute positively requires an adjournment. How. Stat. § 6846.</p> <p>So held, where the docket showed such appearance to have been by attorney, but failed to show that proof was made by the attorney of his authority to appear, as required by How. Stat. § 6870. Scofield v. Caboon, 31 Mich. 206; Reed v. Gage, 33 Id. 179.</p> <p>3. A docket entry by a justice, in an attachment suit where defendant was not personally served and did not appear, that the plaintiff appeared at the proper hour on the adjourned day, shows a regular appearance.</p> <p>3. Proceedings for the dissolution of a justice’s court attachment do ■ not suspend or bar action in the main case.</p> <p>So held, where pending a thirty days’ adjournment under the statute the attachment was dissolved by a circuit court commissioner, and an appeal taken to the circuit court, and on the adjourned day the justice rendered judgment for the plaintiff in the main case, the defendant not appearing in the cause.</p> <p>4. The dissolution of an attachment issued by a justice of the peace, where defendant is not personally served and does not appear, vacates a judgment rendered in favor of the plaintiff.</p>

<p>Error to Newaygo. (Fuller, J.)</p> <p>Information for statutory conspiracy under “Baker Law,” .so called. Respondent convicted.</p> <p>The facts aré stated in the opinion.</p>

<p>Error to Wayne. (Chambers, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are -stated in the opinion, and in 57 Mich. 525.</p>

<p>Error to superior court of Detroit. (Ohipman, J.)</p> <p>Assumpsit. Plaintiff brings' error.</p> <p>The facts are stated in the opinions.</p>

<p>Ejectment — Adverse possession — Tenant in common — Withdrawal of special questions to jury.</p> <p>1. Where the occupant of land under tax titles purchased an undivided eighth of the original government title of an heir, and, on the trial of an ejectment suit brought by the owner of the remaining seven-eighths, set up such adverse possession under the statutes as a defense,—</p> <p>Held, not error to instruct the jury that while such purchase constituted defendant prima facie a tenant in common with the plaintiff, and prevented the defendant from thereafter holding adversely to such co-tenant, yet such prima fame case might be •overcome by evidence that the original possession was continued by defendant with the intention to exclude the plaintiff from any right or interest therein, which question was properly submitted to the jury under the evidence in the case.</p> <p>S. Adverse possession under the statute must be open, notorious, continuous, exclusive, visible, and distinct, as well as adverse. There must be an actual occupancy, as distinguished from con. structive possession, of a portion or all of the premises claimed ; not necessarily living thereon, for, if the premises are inclosed and cultivated, this would be a sufficient actual occupancy; and if crops were continually grown thereon, this would be a visible occupancy; and though in the interim between harvest and re-cropping no person was actually on the land, and nothing done thereon, yet, if such cropping continued from year to year, this would be a continuous and notorious occupancy, within the definition above given.1</p> <p>3. A defendant submitted special questions to the jury, and on their return into court for further instructions withdrew the same, with the permission of the court, in the absence of plaintiff’s attorney, for which neither the court nor defendant was in fault. The facts asked to be found were submitted in the general charge, and the case was one proper to be submitted to the jury-</p> <p>Held, that error could not be assigned by the plaintiff on account of such withdrawal.</p>

<p>Error to Ionia. (Smith, J.)</p> <p>Ejectment. Defendant brings error.</p> <p>The facts are stated in the opinions.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

(Williams, J.) Ejectment. Defendant brings error. The facts are sufficiently stated in the opinion, and in the briefs of • counsel.

(Jennison, J.) Bill filed to set aside a deed by a wife of ber homestead for fraud. Complainant appeals. The facts are stated in tbe opinion.

<p>Appeal from Saginaw. (Gage, J.)</p> <p>Appeal from the report of commissioners in condemnation proceedings.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Information to determine the right of respondent to hold the office of supervisor.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Wayne. (Jennison, J.)</p> <p>Trespass. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Partnership — Death of one partner before commencement of suit— Amendment of pleadings — Substitution of names of survivors — Review oh case made — Findings of fact.</p> <p>1. Defendant recovered judgment under notice of set-off in justice’s court, in a suit brought by three plaintiffs as copartners, who appealed to the circuit court, after which their attorneys ascertamed, for the first time, that one of the plaintiffs was dead at the time suit was commenced. The circuit court allowed an amendment of the process and pleadings by substituting the surviving partners as plaintiffs, against defendant’s objection, and on the trial rendered judgment for the substituted plaintiffs.</p> <p>Held, that the amendment did not change the identity of the opposing litigants, the title to the cause of action being in the surviving partners, and was properly allowed.</p> <p>2. In a suit by a firm of Chicago merchants to recover an alleged balance due from a Michigan customer for merchandise sold him, he testified to the payment of such balance to plaintiffs’ traveling salesman, from whom he purchased the goods, and that such was the usual custom in his vicinity, unless otherwise ordered; that he had made three-quarters of his payments in like manner, receiving credit therefor, and without objection until he ceased dealing with plaintiffs. The circuit judge found that a portion of plaintiffs’ bill-heads had printed thereon, in prominent letters, ' “ Pay no money to salesmen or agents,” and that the salesman in question was not authorized to receive such payment, which was never consented to by plaintiffs, nor received by them.</p> <p>Held, that the facts found supported the judgment rendered for the plaintiffs.</p> <p>3. In reviewing a case made, the appellate court cannot weight evidence, determine facts, or review the findings of the court below upon questions of fact. (See cases cited in opinion, p. 404.) It is only where there is a total want of evidence, or where the finding is contrary to the undisputed evidence, that the facts found by the trial court can be overturned.</p>

Mandamus to compel the county of Ontonagon to pay a bonus for building a State road, and for other relief. The facts are stated in' the opinion, and in Chadbourne v. State Land Commissioner, 59 Mich. 113.

(Joslin, J.) Bill filed to foreclose a mortgage on a homestead and other land, and a second mortgagee of the other land appeals from a decree directing the sale of the homestead after her security is exhausted. The facts are stated in the opinion.

<p>Appeal from Kent. (Montgomery, J.)</p> <p>Bill to declare and enforce a vendor’s lien. Defendant Sarah Outhouse appeals.</p> <p>The facts are stated in the opinion.</p>

(Mills, J.) Bill filed to correct mistake in the description of land in a mortgage, and to foreclose the same. Defendant Kays appeals. The facts are stated in the opinion.

<p>Negligence — Injury from, defective highway — Contributory negligence —Submission to jury — Action of person in emergency — Illness in family — Evidence—Inability of township.</p> <p>1. A highway, in approaching a river, was constructed upon an embankment of varying width and height, and not upon a straight line, and at one point had been partially washed away, the river at some seasons of the year overflowing the road-bed. There was no railing or other protection to prevent travelers going off the embankment, or to indicate where the road-bed was when so submerged. A citizen, who was familiar with the general condition and character of the road, passed over it in the day-time without difficulty, though covered with several inches of water, and on his return in the evening found that the water had risen considerably, but, it not being yet dark, attempted to drive over it. On reaching the point where the embankment had been encroached upon by the river, his horse became unmanageable, plunged off the embankment, and was drowned, and in a suit against the proper township for damages the court directed a verdict in its favor, on the ground of plaintiff’s contributory negligence.</p> <p>Held, that upon this issue there were two reasonable but different views which might be taken, and therefore the question ' should have been submitted to the jury.</p> <p>2. It is not a universal rule that a defendant is excused from liability merely because the plaintiff, with knowledge of the danger caused by defendant’s negligence, voluntarily incurs it. If the defendant has so acted as to induce the plaintiff, acting with reasonable prudence, to incur such danger, or if, by such negligence, plaintiff is placed in a situation of peril, to escape which he voluntarily incurs another danger, the defendant is liable, although the plaintiff may not in the emergency have pursued the course which ordinary prudence would have dictated.</p> <p>8. “ A person who, in the lawful use of a highway, meets with an obstacle or other cause of insufficiency, may yet proceed if it is consistent with reasonable care so to do; and this is generally a question for the jury, depending upon the nature of the obstruction or insufficiency, and all the circumstances surrounding the case.” Kelley v. Fond du Lac, 31 Wis. 179, 187.</p> <p>4. There was no error in excluding evidence of the ill health of plaintiff’s wife, and his anxiety to reach home. Such fact could not be considered as an element of proof to excuse him from incurring risks which he might not otherwise have taken, or m measuring the care which a prudent man would have exercised under the circumstances.</p> <p>5. Emergencies may sometimes be given in evidence, and will justify what otherwise would be considered a rash and indefensible act; such as of an engineer standing at his post in the endeavor to save the lives of the passengers or others when a collision is imminent, of a person rushing in front of an engine to save the life of a child, or placing himself in a position of danger to save the life of another. Eckert v. Long Island R. R. Co., 43 N. Y. 503; Linnehan v. Sampson, 126 Mass. 506; Cottrill v. Chicago, etc., Ry. Co., 47 Wis. 634; Pennsylvania Co. v. Roney, 89 Ind. 453.</p> <p>6. The testimony offered tending to show the condition and situation of the highway, and whether there were any railings or guides to indicate the position of the embankment when covered by water, and to protect persons from the danger of driving off, was admissible, as bearing upon defendant’s negligence in not keeping the highway in a condition reasonably safe and fit for public travel. Carver v. Detroit & Saline Plank Road Co., 61 Mich. 584.</p> <p>7. In a suit involving the negligence of a township in not keeping a highway in repair, a witness was asked whether, from his knowledge of roads, and the observation of the one in question, it was a safe road.</p> <p>Feld, that the jury were the proper persons to draw all proper inferences from the facts proved, and determine therefrom whether the road was reasonably safe or not, and expert testimony was not required for that purpose,1</p> <p>8. A township in Michigan is not obliged to keep its highways absolutely safe for public travel. The statute only requires that it shall keep them reasonably safe and fit for that purpose.</p> <p>[The opinion so fully discusses the questions of law involved, with citations of authorities, that a summary of the briefs of counsel is omitted. — Reporter.]</p>

<p>Vendor and vendee — Conditional sale — Contract by correspondence —Evidence—Submission to jury.</p> <p>1. Plaintiff sued defendants for a brick-making machine and appurtenances, and on the trial introduced four letters from defendants covering a period of 60 days, which the court held made out a prima facie case. In the first, defendants asked for details of machine, and lowest prices; in the second, ordered the shipment to them of a machine at once, with everything attached, in perfect order; in the third, gave size of moulds, and reiterated request for immediate shipment; and in the fourth, which purported to be in answer to one received- from plaintiff, informed him that they were supplied with trucks, and again urged the immediate shipment of the machine. Plaintiff then testified to shipping machine and moulds to defendants, according to order, and the price, which defendants had not paid. The court held this to make a prima facie casó, and refused to require plaintiff to show the correspondence on his own side, a part of which was brought in subsequently by defendants, who were compelled to show it on their own behalf.</p> <p>Held, that plaintiff had not made out such -a case, the letters, unexplained, falling short of showing what the contract was.</p> <p>Held, further, that he could not leave out a part of the correspondence which explained that with which it was connected.1</p> <p>2. Where, on the trial of a suit for the price of a brick-machine claimed to have been contracted for and sold by correspondence between the parties, in which the vendor proposed to sell the machine on its merits, and gave the vendee the option of putting it up and trying it, and if it did not do all that was claimed for it he need not buy it, the vendee sought to avail himself of such option, and introduced positive testimony that the machine was finally and seasonably rejected, after such trial,—</p> <p>Held, that he had a right to go to the jury on this issue, as also upon the question whether the sale was absolute or conditional, if there was any testimony which could be regarded as making it absolute.</p>

<p>Error to Osceola. (Judkins, J.)</p> <p>Ejectment. Defendants bring error.</p> <p>The facts are stated in the ojDinion.</p>

(Newton, J.) Appeal from the allowance of a claim for breach of warranty in deed against the grantor’s estate. The facts are stated in the opinion.

<p>Error to Calhoun. (Hooker, J.)</p> <p>Trespass to lands. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

Certiorari tó the highway commissioners and clerks of the townships of Windsor, Baton county, and Delhi, Ingham county, to review proceedings for laying out a town-line road. as improvidently granted. The facts are stated in the opinion.

<p>Application for mandamus or prohibition to prevent the ■circuit court of Wayne county from reviewing, by certiorari, a conviction in the recorder’s court of the city of Detroit for the violation of a city ordinance.</p> <p>The facts are stated in the •opinion.</p>

<p>Error to Eaton. (Hooker, J.)</p> <p>Trover. Defendants bring error.</p> <p>The facts -are stated in the opinion.</p>

<p>Injury to infant — Imputed negligence of parent — Absence of flagman at railroad crossing — Manner of running train — Practice in circuit courts — Use of diagram by counsel.</p> <p>1. Plaintiff, a child of about three years of age, sued the defendants- for injuries received by being run over by one of defendants’ trains, and recovered a judgment, which was reversed, Morse, J. filing an opinion in which the doctrine of imputing the negligence of parents to children of tender years, and of the liability of such children as trespassers, is discussed, with numerous citations of authorities, and favoring a reversal of the judgment on the following grounds:</p> <p>a — The refusal of the court to instruct the jury that, upon the testimony and under the pleadings, the absence of a flag-man at the place of the accident was no evidence of negligence on the part of defendants.</p> <p>b — The refusal of the court to instruct the jury that the fact that the engine was backing, tender foremost, hauling the train behind the engine, was no evidence of defendants’ negligence.</p> <p>e — The refusal of the court to permit defendants’ counsel, in opening his case to the jury, to explain his proposed evidence by a diagram of the premises where the accident occurred.</p> <p>9. Sherwood, J., concurred in the result reached by Morse, J.</p> <p>3. Campbell, C. J., and Champlin, J., concurred in granting a new trial, but decline to discuss the question of imputed negligence, it not being necessarily involved in the case.</p> <p>[The points of counsel and the authorities are so thor•oughly discussed in the opinion of Justice Morse, that a summary of their briefs is omitted. — Reporter.]</p>

<p>Negligence — Failure to give signals at railroad crossing — Practice in circuit courts — Conduct of counsel — Improper references to former trial — Argument.</p> <p>1. Where the testimony is conflicting whether the required signals were given by those in charge of a railway train on approaching a city crossing, the question is properly submitted to the jury.</p> <p>2. It is improper for counsel engaged in a second trial of a cause to state, in the presence and hearing of the jury, what occurred upon the former trial; and where the Court can see that remarks so made were likely to influence or prejudice the jury, the judgment will be reversed for that cause.</p> <p>"8. It is competent to interrogate a witness as to testimony given by him upon a former trial, for the purpose of refreshing his recollection or impeaching him.</p> <p>4. Extravagant expressions are apt to be used by counsel in the heat of an argument. Invective is sometimes' resorted to, persuasions used, and forensic skill employed, — all with the design to influence the jury in behalf of a client. But all these arts and appliances are permissible so long as confined within the legitimate bounds of the discussion of the facts; and if courts are to take it upon themselves to set aside vérdicts because some irrelevant remarks are thus made use of by counsel, they will find constant employment, and few indeed will be the verdicts which will be sustained.1</p> <p>5. Where, on the trial of a suit for negligent injury to a child by a railway company, three persons on the train testified that it was their duty to keep a lookout, and two of them testified that they occupied positions where they could have seen the child had it been upon the track, and that they did not see it, and three witnesses swear that they saw the child upon the track, and the train approaching several hundred feet away, and the child is run over in the broad light of a summer afternoon,— Held, conclusive proof of reckless negligence on the part of the railway company in running the train without a proper lookout.</p> <p>6. In such a case, where the defendant is shown to have been guilty of reckless negligence resulting in the injury complained of, the question of the contributory negligence of the plaintiff does not arise.</p>

Appeal irom Kalamazoo. (Mills, J.) Bill by assignees to remove attachment and execution liens alleged to have been fraudulently obtained. Attaching creditor appeals. Decree granting relief prayed for affirmed by a divided Court. The facts are fully stated in the opinions.

(Montgomery, J.) Petition for tbe review by tbe probate court of a final set» tlement of an administrator’s account. The facts are stated in the opinions.

<p>Executors and administrators — Sale of real estate to pay debts and legacies — Sufficiency^ of petition, license, and oath— Failure of probate judge to require bond on sale— Good-faith purchaser.</p> <p>1. A petition by an executor for a license to sell real estate for the payment of debts and administration expenses alleged the amount of such claims, and the necessity of such sale for want of personal property with which to pay the same.</p> <p>Held, in an action of ejectment against the purchaser, involving the validity of such sale, that the Court cannot inquire into the truth or falsity of such allegations, or interfere with the adjudication of the judge of probate thereon.</p> <p>2. Where such a petition complied substantially with the statute, and contained the stacutory prayer,—</p> <p>Held, that the insertion of an allegation that the petitioner makes it with a view to the distribution of the balance, not required to pay debts, will not render it void.</p> <p>•3. A petition by an executor for license to sell real estate for the payment of debts and administration charges fixed the same at $1,300, and asked for the sale of all of the real estate, valued at $8,800. A license was granted for such sale, “ for the purpose of paying debts, claims, interest, and charges,” in which it was recited that it appeared to the court that such sale would be for the interest of all persons interested. A legacy of $4,000, due the widow, was paid by the executor from the proceeds of the sale, and the balance accounted for on final settlement in the probate court as held for distribution, and all persons interested consented to an order of distribution, based upon such accounting, without further notice.</p> <p>Held, that the license was a valid order, in effect to sell the entire premises to pay legacies, debts, and charges of administration, and that the sale made thereunder was justified under How. Stat. § 6031.</p> <p>4. Under How. Stat. § 6076, a sale of real estate by an executor cannot be avoided, in an action by an heir or any other person claiming under the deceased, on account of any irregularity in the proceedings, provided it appears—</p> <p>a — That the executor was licensed to make the sale by a probate court having competent jurisdiction,</p> <p>o — That he gave a bond, which was approved by the probate judge, in case a bond was required on granting license,</p> <p>e — That he took the oath prescribed by law before sale.</p> <p>d — That he gave notice of the time and place of sale, as required by statute.</p> <p>e — That the premises were sold accordingly, and the sale confirmed by the probate court, and they are held by one who purchased them in good faith.</p> <p>5. Where the report of the sale of land by an executor was confirmed in June, 1871, and showed the taking of the required oath before sale, but the oath on file purported to have been made December 81,1871,—</p> <p>Held, that oral proof to show that the real date should be December 81, 1870, was admissible.</p> <p>6. The purchasers of land at an executor’s sale paid all the land was considered worth, and the sale was duly noticed and fairly made.</p> <p>Held, that the fact that, before obtaining license to sell, the-purchasers had agreed to bid a fixed price per acre for the land, could not affect the bona fides of the sale, nor interfere with others bidding higher if they desired.</p> <p>7. The neglect of the probate court to require an executor to file a bond on the sale of real estate should not be allowed to affect the rights of an innocent purchaser in a collateral suit, after due confirmation of such sale; and the word' “required,” in the second subdivision of How. Stat. § 6076 (see head-note 4), refers to the requirement of a bond by the probate court when granting the license, and not to the statutory requirement. Drake v. Kinsell, 38 Mich. 236, 237.</p> <p>8. The fact that an executor deeded land, sold at executor’s sale, as administrator, is a mere irregularity, which cannot affect the title of a good-faith purchaser.</p>

<p>Payment — Delivery of chattels — Replevin—Judgment for value of property — Measure of damages — Assignment of errors upon charge of court. ■</p> <p>1. Plaintiff received of defendant his promissory notes in payment for property sold him, and agreed in writing to accept, as payment, shingles delivered at a designated place, at fixed prices per thousand, if so delivered by the time the notes matured. The shingles were delivered, and plaintiff was notified, but they were destroyed by fire, and plaintiff denied that he accepted the same as payment of the notes.</p> <p>Held, that it was for the jury to determine, as a question of fact, whether the shingles were, by the agreement of the parties, accepted and applied or to be applied in payment of the notes.</p> <p>2. Act No. 101, Laws of 1885, allowing assignment of errors upon' the charge of the.court without exceptions on the trial, criticised by the majority of the Court; Sherwood, J., dissenting, and holding that the statute tends to secure rights of parties which might otherwise be lost.1</p> <p>8. In an action of replevin, where the property is delivered to the plaintiff on the writ, and defendant elects, on the trial, to take a judgment for its value under the statute, the measure of his damages is such value at the time of the unlawful taking, with interest thereon to the date of the verdict. Hanselman v. Kegel, 60 Mich. 541 (head-note 4).</p> <p>4. In such a case, evidence of the value of the use of such property is admissible on the trial in the absence of a waiver of its return, and a failure to object to such testimony is not a waiver of the error of the court in allowing the jury to add such value to the value of the property, where its return is waived at the close of the trial.</p>

<p>Constitutional law — Title of amendatory aet — Municipal corporations — Liability for injury from defective sidewalks.</p> <p>Sections six and seven of Act No. 214, Laws of 1885, amending Act. No. 244, Laws of 1879, being for a different object than that expressed in the title to the act, are void, and the amendments made to the original act by the remaining sections are so intimately connected with such void sections as to render the entire amendatory act void.1</p>

(Chipman, J.) Bill filed to enjoin suit by special administrator for the-conversion of property belonging to the estate. Defendant Brennan appeals. The facts-are stated in the opinion.

<p>Error to Lenawee. (Howell, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Newton, J.) Bill to set aside drain tax. Complainant appeals from decree dismissing bill. .The facts are stated in the opinion.

<p>Partnership — Contract made by one copartner — Ratification.</p> <p>Defendants were copartners engaged in the liquor business, and defendant Grady employed plaintiff to take the necessary legal steps to enable a traveling salesman of the firm to open a saloon, which they expected to supply with liquors. Defendants had joint conversations with plaintiff concerning the business, and Kortlander paid plaintiff some money towards his expenses in attending to it.</p> <p>Held, in a suit to recover pay for such services, that it was not error to instruct the jury that, if such payment was made with knowledge of the arrangement with Grady, Kortlander was liable with him for its performance.</p> <p>Held, further, that the arrangement, being made in the interest of the firm, could be ratified even if outside of the joint business, which seems very doubtful.</p>

<p>Appeal from Kent. (Montgomery, J.)</p> <p>Bill filed to set aside a levy on a homestead. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Liquor bond — Mandamus to compel approval by township board,</p> <p>1. Where a mandamus is asked to compel a township board to approve a liquor bond, it having been rejected for the alleged pecuniary insufficiency of one of the sureties, unless the Court can say, from an examination of the whole record, that the respondent has acted arbitrarily or capriciously, or with a desire to evade the law, the writ will be denied.</p> <p>2. In such a case the Court is not called upon to pass upon the showing made in the record as to the value of the property of the rejected surety, and decide as to his pecuniary responsibility to become such bondsman, but is required to determine whether the respondent has acted in good faith, and not arbitrarily or unjustly. The Court is only concerned with the facts so far as they throw light upon the conduct of the respondent in rejecting the bond; and unless such facts are inconsistent with the statements of good faith and honest discharge of duty contained in its sworn return, the Court must give credit to such return.</p>

<p>'Taxes — Payment under protest — Action for recovery — Assessment of copartnership property — Involuntary payment.</p> <p>1. Plaintiffs sued to recover taxes paid under protest, assessed on their personal property, alleging, as the sole error complained of, an excessive valuation.</p> <p>Held, that this was not a protest under the statute (tax law of 1882, § 42), which does not apply to personal property, hut one made on a payment claimed to have been involuntary, and, therefore, if not due, liable to he demanded back as money paid without consideration, under legal pressure, and recoverable as such, if at all; and that the protest did not stand in the way of such recovery.</p> <p>•%. The personal property of a firm was assessed to one of the copartners in a township in which neither resided, it being legally assessable in the home township. The owners paid the tax under protest to avoid a threatened levy, and sued the township for the money thus paid.</p> <p>Held, that the payment was none the less involuntary because the assessment was in form against owe of the copartners.</p> <p>3. A demand of payment of a tax by an officer having a warrant involves an implication that payment will be enforced, if not made, and an actual levy is not required, or proof that a levy could be made on tangible property. If the party yields to the legal menace, it cannot be presumed, in favor of the exactor of payment, that he could have found nothing to levy on, or that there were no means of enforcement.</p>

(Chambers, J.) Certiorari to review the order of a circuit judge affirming a commissioner’s order dissolving an attachment. Attaching creditor sues out writ. The facts are stated in the opinion and head-notes.

Mandamus to compel respondents to meet and canvass the votes cast for the establishment of the county-seat of Iron county. The facts are stated in the opinion and head-notes.

Mandamus to compel respondent to license a foreign insurance company to do business in Michigan. The facts are stated in the opinion.

<p>Error to Kent. (Montgomery, J.)</p> <p>Debt for statutory penalty. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Allegan. (Arnold, J.)</p> <p>Case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Berrien. (Smith, J.)</p> <p>Ejectment. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Kent. (Montgomery, J.)</p> <p>Case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to St. Joseph. (Joslin, J., presiding.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Oakland. (Stickney, J.)</p> <p>Bill to enforce a vendor’s lien. Defendant appeals.</p> <p>The facts are stated in the cpinion.</p>

<p>Justices of the peace — Docket entry — Attachment suit — Liability on-bond.</p> <p>1. Where an attachment suit in justice’s court was duly commenced by the seizure of property and by personal service on the defendant, who on the return-day, having obtained a dissolution of the writ, appeared, and, without pleadings being filed, confessed-judgment for the amount of plaintiff’s claim, which was entered on a separate docket from that containing the record of the proceedings in the attachment suit, which closed with a statement-that judgment had been so confessed, with a reference to the docket and page where such judgment was entered,—</p> <p>Held, that the docket entries were sufficiently connected to establish that the judgment thus entered was a judgment in the attachment suit.1</p> <p>2. The prosecution to final judgment of an attachment suit in justice’s court, after the dissolution of the writ, satisfies the condition of the bond required to be given by How. Stat. § 6838.2</p>

<p>Landlord and tenant — Lease of land for mining purposes — Liability of lessee for royalty and taxes.</p> <p>1. Where a lessee leased a parcel of land “ for the purpose of exploring for, mining, taking out, and removing therefrom the merchantable shipping iron ore which is, or which hereafter may be, found on, in, or under said land,” and the lessors expressly reserved to themselves the use and possession of the land for every other purpose, and restricted the right of the lessee to cut timber thereon to such as might be wanted for mining purposes,—</p> <p>Held, that if, upon diligent search and exploration, no iron ore was found, and none exists in or under the soil, the lessee-cannot' be held liable for the royalty agreed to be paid on the ore agreed to be mined and removed from the leased premises during the term of the lease.1</p> <p>2. Where in such a case the lessee agreed to pay all taxes assessed on the land, iron ore, or improvements thereon, and retained possession from August, 1881, to June, 1882, when he abandoned the-premises for the reasons stated in head-note 1,—</p> <p>Held, that he was liable to pay the taxes for 1881 on the land and improvements.</p>

(Grant, J.) Bill filed under section 118, Act No. 153, Laws of 1885, to foreclose a lien in favor of tbe grantee in a tax deed. The facts are stated in the opinion.

<p>Appeal from Marquette. (Grant, J.)</p> <p>Bill filed to quiet title to land held under tax deed.</p> <p>The facts-are stated in the opinion.</p>

<p>Error to St. Olair. (Stevens, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts •are stated in the opinion.</p>

<p>Mutual benefit associations — Forfeiture of certificate — Documentary evidence — Leaf from soldier's record-book — Church record of baptism — Submission of facts to jury.</p> <p>1. A leaf taken from a soldier’s private record-book, after his death, required to be kept by soldiers in the British service, containing the names of the soldier and his wife, and the names, ages, and places of birth of all his children, on a printed form designed for uniform army use, is competent evidence to prove the ages of the children; and such removal in no way derogates from its authenticity, so long as it is traced and explained.</p> <p>A. The rule laid down in England, and followed until recent times, which recognized none but registers and similar records of churches of the established religion, has been abrogated there by statute, so as to open the door to many other records which all - churches keep, and which are quite as likely to be accurate as those of an established church. These records serve a purpose equivalent to that served by family records. In this country they are fairly to be dealt with as equivalent to corporation records, which are generally evidence of such matters as are recorded in the usual course of affairs.</p> <p>So held, where the recitation of the age of a deceased beneficiary in a mutual benefit association, as stated in the application for membership, was sought to be impeached by a sworn and examined extract from the parish record of the Catholic church at Amherstburg, in Ontario, which showed the date of her baptism and the names of her parents, with the description of her father as a soldier, and stated the date of her birth, and was accompanied by evidence that such record was required by the rules of the church to be kept, which record was more than thirty years old.</p> <p>:8. A court cannot properly submit to a jury facts on which the testimony is all one way.</p>

<p>Evidence — Conversations—Charge to jury.</p> <p>1. The fact that a witness is asked if he had a conversation at a certain time,, and the matter is left with an affirmative reply, does not always entitle the other party to call out what the conversation was, as was held in Beaubien v. Cicotte, 12 Mich. 484. But if such conversation has any bearing’ on the controversy,-it is proper to elicit it.</p> <p>2. In such a.case it is not competent for the counsel, who called out the fact that such a conversation was had, to delay making objection until the witness has partially stated what was said, and thus exclude the balance of the conversation.</p> <p>3. A jury are not warranted in finding a fact established by a greater probability unless, also, the evidence satisfies them that the fact exists. The conclusion that it exists maybe drawn from a preponderance of probabilities in its favor, but the probabilities must be such that the conclusion may he drawn, or it is not proved.</p>

<p>Error to Berrien. (Smith, J.)</p> <p>Assumpsit to recover taxes paid under protest. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Smith, J.) . Application to appoint a guardian for an alleged incompetent person. Order for such appointment affirmed on appeal in the circuit court, and the appellant brings error. The facts are stated in the opinion.

Exceptions before judgment from the superior court of Grand Rapids. (Parrish, J.) Information for assault with intent to do great bodily harm less than the crime of murder. Respondent was convicted. Respondent discharged, but without prejudice to further proceedings for the crime charged. The facts are stated in the opinion.

<p>Criminal law — Assignments of error on refusals to charge — Seduction defined — Duty of court in charging jury — Presumption of innocence.</p> <p>1. An assignment which in terms assigns error upon the refusal to give each and every one of defendant’s requests to charge applies to each request separately, and sufficiently points out the errors relied on.</p> <p>2. The second assignment of error (see opinion, p. 698) is too general, and cannot he considered.</p> <p>3. Where in a criminal prosecution for seduction the testimony showed no other inducement or motive than a promise of marriage, except it might be the mutual desire of the parties, to which the court directed the attention of the jury, .charging them that if that was the motive respondent was not guilty, a request for an instruction that, if the jury find from the evidence any inducement or motive which led the prosecutrix to submit to the embraces of respondent other than the promise of marriage, they should find him not guilty, is properly refused.</p> <p>4. The offense of seduction, punishable under How. Stat. § 9283, is committed if the man has carnal intercourse to which the woman assents, if such assent is obtained by a promise of marriage made by the man at the time, and to which, without such promise, she would not have assented. People v. Millspaugh, 11 Mich. 278, 282, 288.</p> <p>The offense consists in enticing the woman from the path of virtue, and obtaining her consent to the illicit intercourse by promises made at the time; and the evidence to convict should be such as to satisfy the jury beyond a reasonable doubt upon these points. The promise and yielding her virtue in consequence thereof is the gist of the offense, and if the woman resists, but finally assents or yields, induced thereto in reliance.upon the promise, the offense is committed.1</p> <p>5. An act of intercourse induced simply by the mutual desire of the parties to gratify a lustful passion does not constitute the crime of seduction.</p> <p>6. The crime of rape is not embraced in that of seduction, and instructions upon the law relative to the former crime would be.improper on a trial for the latter offense.</p> <p>7. In a trial for seduction the judge should instruct the jury that, if the prosecutrix did not assent to the act of intercourse, the offense was not committed.</p> <p>8. In his charge to the jury on a trial for the crime of seduction, the-judge called their attention to the fact that the people rested their testimony upon that of the complaining witness, which stood before them uncontradicted by any other witness in the-case, and that the fact that the parties had sexual intercourse on the day, and at the place named, was not disputed, and the jury might take that fact as established in examining the case.</p> <p>Held, that this was erroneous, the weight of the evidence, and the credit to be given to the testimony of the complaining witness, being questions' exclusively for the jury,'who weie to weigh the legal presumption of the respondent’s innocence, until rebutted and overcome by evidence, against such testimony, and ascertain what the facts were.</p> <p>9. It is the duty of the trial judge, in a criminal case, to instruct the jury in reference to the presumptions of law applicable thereto, distinguishing those which are conclusive from those which are , disputable.</p> <p>10. The presumption of innocence is present in every criminal case, and the jury should be so instructed, and that such presumption stands good until overcome by evidence which convinces the jury beyond a reasonable doubt that the respondent is guilty.</p>

<p>Error to Gratiot. (Hart, J.)</p> <p>Indictment for murder. Respondent was convicted.</p> <p>The facts are stated in the opinion.</p>

Exceptions before judgment from Newaygo. (Fuller, J.) Information for larceny. Respondent was convicted. The facts are stated in the opinion.

Exceptions from Allegan before judgment. (Arnold, J.) Respondent was convicted of selling fermented liquor, as a •druggist, without giving either of the bonds required by Act No. 259, Laws of 1881. The facts are stated in the ■opinion.

Exceptions from the recorder’s court of the city of Detroit before judgment. (Swift, J.) Information for burglary. Respondent convicted. The facts are stated in the opinion.

<p>Criminal Law — Warrant—Jurisdiction of justice of the peace— Larceny — Intent.</p> <p>1. How. Stat. § 7135 a, making it unlawful for justices of the peace to issue warrants in certain criminal cases without the order of the prosecuting attorney or the filing of security for costs, was not intended to limit the jurisdiction of such officers in criminal cases, but its object was to guard against the indiscretion, frequently indulged in by magistrates, in permitting legal proceedings to be instituted without previous inquiries into the circumstances surrounding the case.</p> <p>2. While a failure to follow the statute might subject the magistrate to censure, and possibly, in some cases, to pecuniary injury, it is not a question in which the respondent is especially interested, and, if the people are satisfied to prosecute without such security, there is no reason why he should complain.</p> <p>.3. On the trial of a respondent for the larceny of a bottle of brandy and $2.75 in money, the testimony for the people tended to show that respondent ordered the brandy sent to a certain house for a specified person, with change for $5, which was done, and the messenger, a boy 12 years old, returned with a receipt for $10. He testified that, before reaching the house, he met respondent, who took the money and brandy, and gave him the receipt, telling him he would carry the “goods” himself. A bottle of brandy ■of the same description was subsequently found in respondent’s room.</p> <p>Held, that there was sufficient evidence on which to submit the question of intent to the jury, and, if found to exist, the ■taking from the boy, under the circumstances stated, and the carrying away of the property by respondent, were sufficient to ■constitute larceny.</p>