Volume 82 — Michigan Reports

<p>Negligence — Dangerous premises — Failure to guard trap-door — Evidence — Contributory negligence,* 1</p> <p>1. Trap-doors, elevator shafts, and similar openings in floors have long been a usual and necessary part of the appliances of business in most warehouses, manufactories, and other business buildings; and the mere fact of their existence and use is no evidence of negligence. But they are dangerous openings, which fact makes it the duty of those maintaining them to properly guard them when open, and, where this cannot be done by means of railings, it has been held that the owner is bound to give actual notice of the danger to every person lawfully approaching the place, in default of which he is liable for all injuries resulting therefrom; citing Shear. & R. Neg. § 719, and cases cited.</p> <p>2. It is a sound rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any; citing Beach, Contrib. Neg. 41, and cases cited; and every one has a right to presume that others, owing a special duty to guard against danger, will perform that duty; citing Bailroad Co. v. Martin, 41 Mich. 667.</p> <p>3. Where the question of contributory negligence is not free from doubt, the facts should be submitted to the jury; citing Palmer v. Harrison, 57 Mich. 183; Dundas v. Lansing, 75 Id. 499.</p> <p>4. Where, in a negligence case, the injury complained of resulted from the negligence of the defendants’ employés in not properly guarding an open trap-door which they were using, it is not error to exclude testimony showing instructions from defendants to so guard it.</p>

<p>Booming companies — Deed—Reservation—Removal of logs from banks of stream — Trespass—Vested rights.</p> <p>1. How. Stat. § 2058, as amended by Act No. 142, Laws of 1885, •which provides for the removal of logs which have drifted or floated upon any island in any of the waters or streams in this State, or upon the banks or shores of such waters, or lands adjacent thereto, has no application to a booming company which had secured such right of removal by contract prior to the passage of said statute.</p> <p>2. A reservation in a deed executed by a boom company, — a considerable portion of whose business consisted in removing logs which had floated from the river on which it operated onto adjacent lands, and returning them to the river to be run to their place of destination, — -of a free and unobstructed passage along the banks of said river, and across the land conveyed, for the employés of the grantor, with teams and men, in carrying on said business, is construed to give to the company the right to go upon said land with teams and men, and remove the saw-logs -which had floated thereon, and place them in said river for the purpose of running them to their destination.</p>

<p>Garnishment — Justices' courts — Disclosure—Evidence.</p> <p>1. A garnishee in justice’s court is not required to sign his disclosure, nor need it be under oath, unless required by the plaintiff.</p> <p>2. Under the rules and practice in garnishment proceedings in justice’s court, the garnishee is treated as a witness for the plaintiff, who is bound by the disclosure.</p> <p>3. The minutes of the examination of a garnishee, taken by a justice of the peace under How. Stat. § 8036, are not such a record as imports absolute verity, and, on a trial of- the issue framed on the issuance of a summons to show cause, the garnishee may show that the justice failed to take down in such minutes the disclosure actually made.</p>

(Peck, J.) Respondent was convicted of assault and battery, and appealed to the circuit court, where, after the denial of motion to quash, his appeal-bond was forfeited, and before any further proceedings were taken he sued out a writ of error to review said proceedings. The facts are stated in the opinion.

(Burch, J.) Respondent was convicted of manslaughter, and sentenced to 12 years’ imprisonment in State prison. The facts are stated in the opinion.

<p>Criminal law — Rape—Age of consent — Preliminary examination— Return of justice,</p> <p>1. The decision in Yaner v. People, 84 Mich. 386, holding that an examining magistrate must specify the offense for which he holds a respondent to trial, does not apply where a lesser crime is included in the greater one charged, and the justice is not requested on the examination to make such special finding.</p> <p>3. The acts of a female, under the age of consent, can form no legal justification for an assault upon her with intent to violate her person; nor is it necessary for the jury to find, in order to convict, that respondent intended to gratify his passion, regardless of resistance; citing People v. Courier, 79 Mich. 366.</p> <p>[The points of counsel are stated in the opinion.— Reporter.]</p>

Exceptions before judgment from Kent. (Burch, J.) Respondent was convicted of selling intoxicating liquors in violation of a village ordinance. The facts are stated in the opinion.

(Peck, J.) Respondent was convicted of tbe wrongful removal from a public office of certain papers, contrary to the provisions of How. Stat. § 9347. The facts are stated in the opinion.

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

(Brevoort, J.) Eespondent was convicted of larceny, and sentenced to State prison for 3 years and 6 months. The facts are stated in the opinion.

<p>Habeas corpus proceedings.</p>

Mandamus. Eelator applied for mandamus to vacate an order made by respondent appointing a special prosecuting attorney to examine into a criminal complaint, and determine whether it ought to be prosecuted by -an examination before a justice. The facts are stated in the opinion.

<p>Bes judicata — Writ of prohibition.</p> <p>A deed was adjudged to have been forged in a suit by a mother against her son, after which his administrator brought a suit at law against one of her solicitors, charging him with the mutilation of the deed, and seeking to recover damages therefor. And it is held that the circuit court had no jurisdiction to try the case, and a writ of prohibition is granted to stay all further proceedings in the suit.</p>

Mandamus. Relator applied for mandamus to compel respondent to allow an appeal from the report of commissioners on claims disallowing his claim against the estate of a deceased person. The- facts are stated in the opinion.

(Lane, J.) Bill to restrain defendants from using a portion of Hills-dale College for the purpose of keeping a dwelling and ■school boarding-house, etc. Defendants appeal. The facts are stated in the opinion.

<p>Chattel mortgages — Foreclosure—Sale—Notice.</p> <p>1. Where a chattel mortgage provides for a private sale in case of default, and makes no provision for notice to the mortgagor, a sale after the debt is due is valid without such notice; citing Jones, Chat. Mortg. § 793.</p> <p>2. Where a sale of chattel-mortgaged property is made in good faith, a mere irregularity will not subject the purchaser or mortgagee to an action of tort in which the value of the property can be recovered, leaving the mortgage debt unpaid.</p> <p>3. In this case it is held that the foreclosure of a chattel mortgage, and the purchase of the property by the mortgagee, subject to two prior mortgages held by him, covering the same and other property, did not operate as a discharge of the prior mortgages, and a payment of the debts secured thereby.</p>

<p>Criminal law — Plea in abatement — Grand jury — Indictment.</p> <p>1. After a grand jury, composed of twenty members, had been organized, three additional names were ordered to be drawn for the purpose of securing the summoning, if possible, of a juror whose name remained in the box, and who was a stenographer. The desired name was drawn'in good faith, and the juror appeared and was sworn after the jury had commenced their investigation, and thereafter acted as a member of the panel, and also as stenographer, receiving for such special services extra compensation under an arrangement made with the proper auditing board. The juror had acted as special prosecuting attorney in a contempt proceeding before then prosecuted against one of the persons against whom indictments were found by the grand jury. And it is held that the action taken was within the discretion of the court, and that it was not improper thus to secure the services of a stenographer, nor for the juror acting as such to receive extra compensation for his services; and that the fact of his having acted as such special prosecutor would not affect the validity of any of the indictments, except the one found against the respondent in the contempt x>roceedings.</p> <p>2. A respondent who had been indicted for bribery interposed a plea in abatement, in which he averred that after several witnesses, naming them, had given their testimony, he appeared before the grand jury in obedience to a subpoena, and, being ignorant of the fact that charges of bribery against him were being inquired into, and without consulting counsel, or being advised in the premises, he was required and compelled to, and did, give his testimony, and was interrogated fully, as to said charges, and testified to facts material and necessary to prove their truth and to sustain said indictment, and that upon his testimony, and that of the other witnesses, the indictment was found; which qffea is held.bad for uncertainty and insufficiency:</p> <p>a — It is uncertain whether it is based upon the reception of incompetent testimony, or upon the point that the respondent’s constitutional rights were violated in compelling him to give testimony against himself.</p> <p>6 — If based upon the first ground, it is insufficient in that it does not state that some one material fact, stating i£, was alone testified to by respondent, without which testimony an indictment could not have been found; as in the absence of such averments it must be assumed that the jury acted solely upon the testimony of the other witnesses in finding the indictment, and that it was competent and sufficient for that purpose.</p> <p>e — The fact that respondent was subpoenaed to attend before the grand jury, was sworn, and gave testimony relative to the charge of bribery, then being investigated, and that upon his and the other testimony a true bill was found against him, will not vitiate the indictment.</p> <p>d — The constitutional rights of respondent were not violated by his being subpoenaed and appearing before the grand jury, and being sworn, nor in testifying upon any matter that did not criminate him, and, if he testified without objection, he will be deemed to have done so voluntarily.</p> <p>e — Respondent does not aver in his plea that he claimed his privilege, or refused to answer any interrogatories, but that he was required and compelled to, and did, make answer to the questions put to Mm. Tliis is a conclusion from the facts, which he was inquired to set forth, and not such conclusion.</p> <p>/ — As respondent was not upon trial for any offense, no exception can be taken to his not haying the assistance of counsel.</p>

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

Exceptions before judgment from Bay. (Cobb, J.) Respondent was convicted of engaging in the business of selling liquors without having paid the tax required by Act No. 313, Laws of 1887. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to vacate an order allowing the filing of new affidavits nunc fro tunc in place o'f defective ones filed under the statute providing for filing transcripts of justices* judgments with the county clerk. The facts and points of counsel are fully stated in the opinion.

Mandamus. Belators applied for mandamus to set aside certain garnishment proceedings. The facts are stated in the opinion.

<p>Liquor traffic — Civil damage act — Exemplary damages.</p> <p>1. As a husband cannot continue an habitual drunkard unless liquor is furnished to him by some one, a liquor dealer who furnishes such liquor or any part thereof for gain is holden to the wife, under Act No. 318, Laws of 1887, for the money or property he receives from the husband in exchange for such liquor.</p> <p>2. It was held in Larzelere v. Kirchgessner, 73 Mich. 276, that the statute expressly allows exemplary damages to a wife who is injured in her means of support by the sale of liquor to her husband, and that the fact that she had notified the defendant not to furnish such liquor was an element to be considered in estimating such damages, as it had a tendency to show a willful disregard of her rights. Act No. 313, Laws of 1887; Johnson v. Schultz, 74 Mich. 75.</p> <p>[The points of counsel are stated and discussed in the opinion. — Reporter.]</p>

<p>Highways — Proceedings for alteration — Compensation to landowner — Appeal to township board.</p> <p>1. -The question of the adequacy of the compensation awarded by a highway commissioner for land taken for highway purposes is only reyiewable by an appeal to the township board.</p> <p>2. There is nothing in the present law of this State which forbids the altering of a highway on account of its long continued, use.</p>

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

<p>Interest — Partial payments — Compound interest.</p> <p>1. The rule adopted, in this State for the computation of interest in case of partial payments is to apply the payment in discharge of the matured interest, and the surplus, if any, upon the principal, after which interest is computed on the new principal; but if the accrued interest exceeds the payment, the surplus must not be added to the principal, but interest will be computed on the former principal until the aggregate payments exceed the interest due, when the surplus will be applied upon the principal, after which interest will be computed on the new principal.</p> <p>2. Under How. Stat. § 1599, allowing interest to be computed upon interest after it matures, such computation can continue only until the debt matures, after which simple interest is to be cast upon the principal until the time of liquidation.1</p>

<p>Error to Gratiot. (Hart, J.)</p> <p>Assumpsit. Defendant Ferris brings error.</p> <p>Tbe facts are stated in the opinion.</p>

<p>Error to Mecosta. (Palmer, J.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Tuscola. (Beach, J.)</p> <p>Ejectment. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Real-estate agents — ■Commissions.</p> <p>An agent, in order to recover commissions on the sale of real estate, must show that he procured a purchaser, and from him an unqualified acceptance of an offer of sale which the agent was authorized to make.</p>

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

<p>Error to Delta. (Steere, J.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Chattel mortgage — Trover—Demand—Damages.</p> <p>1. A pledgee or mortgagee in possession, who sells sufficient of the property to more than satisfy his claim thereon, becomes a bailee of the l-emainder, and is liable to pay over the surplus money realized on such sale; and a tender of the debt and demand for the remainder of the property are not necessai’y before bringing an action of trover if the pledgee asserts absolute title to the property, and denies all rights of the pledgor therein.</p> <p>2. An instruction based upon a theory not asserted by either party, nor supported by any testimony, is erroneous.</p> <p>8. In trover for the conversion of second-hand household goods, the market value of which is, testified to by a competent witness, the court is not justified in assuming that the goods had no market value, and could not be replaced in open market, and in giving, as the rule of damages, their fair value to the owner, there being no testimony showing their peculiar value to the owner.</p>

<p>Error to Isabella. (Hart, J.)</p> <p>Assumpsit. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

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

Mandamus. Delator applied for mandamus to vacate an order staying proceedings in a suit pending the determination of the issue in a garnishee suit. The facts are stated in the opinion.

<p>Municipal corporations — Removal of officer — Title to office.</p> <p>1. Title to office cannot be tried in an action of replevin for property belonging to the office.</p> <p>So held, where ■ tools .and books belonging to the office of street commissioner of a city were replevied upon the claim by the plaintiff that the appointment of the defendant to that office was illegal.</p> <p>2. Wherever cause must be assigned for the removal of an officer, he is entitled to notice, and a chance to defend.1</p> <p>3. The fact that a city charter expressly forbids the removal of elective officers except for cause does not raise a presumption that the Legislature intended that appointed officers might be removed without cause.</p> <p>4. The Legislature may by express words confer upon the common council of a city the power to remove an appointed officer without cause; but, in the absence of such power so given, the presumption must be that the Legislature intended that every officer appointed for a fixed period should be entitled to hold his office during such term, unless removed therefrom for cause after a fair trial.</p> <p>So held, where a city charter provided for the removal of appointed officers by a majority vote of the aldermen elect, and of elective officers by a concurring vote of two-thirds of such aldermen, and that, as to the latter officers, charges should be preferred, and an opportunity given to make a defense thereto; and the common council assumed to remove a street commissioner who had been appointed for one year, without notice to such officer, and made an appointment to fill the vacancy claimed to have been thus created.</p> <p>5. In such a case the refusal of such street commissioner to deliver up the property, books, and papers of the office indicates his claim to still hold such office, and if he has never yielded up the same, but has held on and continued to act, the appointee of the council cannot be regarded as an officer de faeto; citing Mead v. Treasurer, 36 Mich. 419.</p>

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

<p>Payment — Acceptance.</p> <p>Defendant 'sold goods for plaintiffs on commission, and was to remit to them upon such sales cash or notes, which notes plaintiffs claimed were to be indorsed by defendant, which he denied. Defendant sent a statement of account to plaintiffs, with certain unindorsed notes, accompanied with a draft for the balance due plaintiffs if they accepted the notes, which they refused to do, and returned them to defendant for his indorsement, who refused such indorsement, and sent the notes back to plaintiffs; whereupon one of the plaintiffs went to defendant’s place of residence, and left the notes at his place of business. Defendant refused to receive them, and returned the notes to plaintiffs by mail, and notified them that, if they were again sent to him by mail or express, he would not take them from the office; whereupon plaintiffs handed the notes to an attorney for collection, and a portion of them were paid. The unpaid notes were not taken upon the sale of plaintiffs’ goods, and they had not agreed to accept any such notes. And it is held:</p> <p>a — That the acceptance of the draft and of the money paid on the notes did not bind the plaintiffs to accept the other notes, and that after defendant’s refusal to indorse the notes, or take them back, the plaintiffs were at liberty to collect such of them as they could, and apply the proceeds on their account against the defendant.</p> <p>h — That plaintiffs made all reasonable efforts to deliver the notes to the defendant, who prevented them from so doing, and that it ill becomes him to interpose as a defense the non-tender of the notes to him in the courts below, and that such omission can be easily righted by such a tender on the next trial.</p>

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

<p>Mortgage — Duress—Compounding felony — Equity.</p> <p>1. In this case the execution of a mortgage by a mother, she being moved to so execute it by the belief that she would thereby save her son from a threatened criminal prosecution, is held to have been under undue pressure, and not as the free and voluntary act of the mortgagor, and that a second mortgage executed by her is affected by the original transaction.</p> <p>2. A mortgage given in consummation of a settlement, the object of which is to stifle a criminal prosecution, is voidable as against public policy.</p> <p>3. “In cases where agreements or other transactions are repudiated on account of their being against public policy, the’ circumstance that the relief is asked by a party who is particeps criminis is not, in equity, material. The reason is that the public interest requires that relief should be given, and it is given to the public through the party;” citing 1 Story, Eq. Jur. § 298; 2 Pom. Eq. Jur. §§ 941, 942.</p> <p>4. Courts of equity grant relief in many cases where there is no legal duress, in the strict acceptation of the term, and where the wronged party would perhaps be remediless at the common law; citing 2- Pom. Eq. Jur. § 951; 1 Story, Eq. Jur. § 239; Harris v. Carmody, 131 Mass. 51; Foley v. Greene, 14 R. I. 618; Williams v. Bayley, L. R. 1 H. L. 200; Coffman v. Bank, 5 Lea, 232.</p> <p>5. Where testimony is taken in open court in a chancery suit, the circuit judge has no authority to absolutely reject testimony, unless of a nature so scandalous as not to be proper to appear in the record of the proceedings. If testimony is forced into a case which is evidently irrelevant and immaterial, a motion may be made to expunge it, and the court may order it expunged, with costs against the solicitor insisting upon its being taken; but it must be returned on appeal, in order that the appellate court may pass upon the correctness of the ruling.1</p>

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

(Burlingame, J.) Assumpsit. Both parties bring error from a judgment in favor of the plaintiffs. The facts are stated in the opinion.

<p>Appeal to Supreme Court — Bond—Amount of penalty — Additional bond.</p> <p>1. The chancery appeal-bond provided for by How. Stat. § 6738, is. intended to secure the performance or satisfaction of any decree the Supreme Court may make, where such decree is a, personal one, requiring the party to do some act or pay some-amount of money not otherwise secured.</p> <p>2. In fixing the penalty of an additional chancery appeal-bond under the power conferred by Act No. 13, Laws of 1877, the Supreme Court will look to the decree made by the court below for a criterion to enable it to fix such penalty.</p> <p>3. A party is not guilty of laches in not making a motion for the-filing of an additional appeal-bond during the term in which the transcript is filed, where there is but, one motion day in that term after such filing at which the motion could be heard.</p>

<p>Certiorari to board of school inspectors to review proceedings altering the boundaries of a school-district.</p> <p>The facts are stated in the opinion.</p>

<p>Principal and agent — Logging contract — False representations.</p> <p>1. An agent who is authorized to let a logging contract for his principal is authorized to do everything necessary to bring about such contract, and to make representations respecting the character of the lands, as being well situated for logging purposes; the character and quality of the pine, whether large or small, cork or sapling; and the quantity of timber on the land suitable for saw-logs.</p> <p>2. The reiteration by an agent of representations made on behalf of his principal in order to induce a third party to enter into a contract will not relieve the principal from responsibility, even though such reiteration is coupled with a personal guaranty by the agent of their truth, and the added responsibility of the agent to stand between the contractor and harm.</p> <p>3. When a person adopts the unauthorized acts of another in his behalf, and has received the benefits accruing therefrom, he adopts and ratifies the instrumentalities by which the fruits were obtained.</p> <p>4. Where a jury are authorized to pass upon alleged false representations made to induce the execution of a contract, a request to charge based upon a portion of such representations as , shown by the testimony is properly refused.</p> <p>5. The doctrine is settled in this State that if there was in fact a misrepresentation, though made innocently, and its deceptive influence was effective, the consequences to the plaintiff being as serious as though it had proceeded from a vicious purpose, he would have a right of action for the damages caused thereby; citing Holcomb v. Noble, 69 Mich. 396 (head-note 3).</p>

<p>Principal and agent — Adoption of contract — Liability of principal for frauds or misrepresentations.</p> <p>When a person deals with an authorized agent, he is bound to inquire and ascertain the extent and limit of his authority to bind the principal, and the principal is bound by all acts of the agent within the scope of his authority; and when a principal adopts the contract of a self-constituted agent, who has assumed to act for him without authority, he is bound to inquire and ascertain the extent to which the self-constituted agent assumed to act in his behalf, and the principal, when he becomes such by adopting his acts, is bound by all acts within the scope of the assumed authority; and in both cases the liability of the principal extends to the frauds or misrepresentations of the agent committed or made while acting within the scope of such real or assumed authority.</p>

<p>Corporations — Contract of directors — Public policy — Estoppel — Affidavit denying execution of instrument — Burden of proof — Evidence.</p> <p>1. An agreement by two of the three stockholders of a corporation, who are also directors, that, in consideration of the purchase of stock, the vendee shall be employed as business manager for two years, and if at the end of that time he wishes to retire from the corporation they will repurchase his stock at a stated price, is void as against public policy, unless assented to by the other stockholder.</p> <p>2. Such a contract is not severable, the void agreement to employ the vendee as manager affecting the whole contract.</p> <p>3. The Court distinguish this case from Seymour v. Rolling Mills, 56 Mich. 117, where the contract was made with the corporation, while in this case it had nothing to do with the contract sought to be enforced.</p> <p>-4. Whenever the execution of an instrument is denied by affidavit under circuit court rule No. 79, the burden of proof is upon the x>laintiff to show the execution of the instrument, which includes its delivery.</p> <p>5. Litigants cannot be deprived of their right to except to instructions by the court unless they have expressly requested them.</p> <p>6. Where one of the issues of fact in a case is the consent or non-consent of a stockholder to an agreement made by the other stockholders in a corporation, and there is testimony tending to support both sides of the issue, an instruction on that subject should call attention to both classes of testimony.</p>

<p>Mortgage — Foreclosure—Notice of sale — Bill to redeem — Res judicata.</p> <p>1. The mere fact that a notice of foreclosure sale claims a larger amount than is actually due will not render the foreclosure proceedings void, no actual injury or fraudulent purpose being shown.</p> <p>So held, where foreclosure proceedings were commenced before the maturity of the principal, and an installment of interest not due until sixteen days after the date of the notice of sale was included in the amount claimed to be due at that date.</p> <p>2. A bill filed to set aside a statutory foreclosure sale must be considered as a bill to redeem, whether such specific relief is prayed for or not.</p> <p>3. Where no fraud is alleged in such a bill, and the only irregularity charged is that the amount claimed to Be due in the notice of sale is excessive, the mortgagor must be prepared to do equity by the payment of the amount actually due, or by submitting to a resale of the premises.</p> <p>4. In such a suit the decree should provide for redemption on payment of the amount actually due within a specified time, and, in default, that the mortgaged premises be sold as in foreclosure cases; citing Fosdick v. Van Husan, 21 Mich. 567.</p> <p>6. A mortgagor filed a bill to set aside a statutory foreclosure sale on the ground that the amount claimed to be due in the notice of sale was excessive, and because the sale was made for the principal sum secured by the mortgage, which was not due, as well as for the accrued interest 'Jhe court made a decree holding the sale null and void, and permitting the mortgagor to redeem by paying the amount actually due at date of the notice of sale, less the costs, in default of which payment the bill was to be dismissed. The mortgagor failed to make such payment, and a decree was entered dismissing the bill, from which he did not appeal; whereupon summary proceedings were instituted to recover possession of the mortgaged premises. And it is held that the mortgagor cannot attack such decree collaterally, but must be held to have rested satisfied with it as a decree of strict foreclosure.</p>

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

<p>Error to "Wayne. (Hosmer, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Railroad companies — Damages—Injury to passenger alighting from, train — Charge to jury — Special questions.</p> <p>1. It is error to refuse to submit to the jury special questions, unambiguous in form, and relating to a question of fact in issue;1 citing Harrison v. Railroad Co., 79 Mich. 409.</p> <p>2. A request for an instruction “that the running of a railroad train beyond the usual stopping place at the station before coming to a stand-still is not in itself negligence, nor is the pause after it is brought to a stop, for a period necessary to reverse the motion so as to back to the usual stopping place, negligence,” is properly modified by adding, “ unless the stop is so made and for such a length of time as to indicate that it is an invitation to passengers to alight, and the movement backward is made without warning while they are alighting in response to such invitation.”</p> <p>3. The charge in this case as to the measure of damages (see opinion, p. 383) is fully supported bj Power v. Harlow, 57 Mich. 116; Geveke v. Railroad Company, Id. 596.</p> <p>4. A plaintiff in a negligence case is entitled to recover, as a part of his damages, his reasonable and necessary outlays in an attempt to be cured of the injuries resulting from the negligence of the defendant.</p>

<p>Error to St. Clair. (Canfield, J.)</p> <p>Case. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

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

Mandamus. Relator applied for mandamus to compel the approval of a liquor bond under Act No. 313, Laws of 1887. The facts are stated in the opinion.

<p>Appeal from Clare. (Hart, J.)</p> <p>Bill to enforce tbe payment of specific taxes. Defendants Hackley and Hume appeal.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relator applied for mandamus to compel respondent to spread certain drain taxes upon the assessment roll of his township. The facts are stated in the opinion.

Mandamus. Relator ■ applied for mandamus to compel respondent to spread certain taxes upon the assessment roll of his township. The facts are stated in the opinion.

<p>Evidence — Value of services.</p> <p>A witness who is not shown to have any knowledge of the value of the services for which a suit is brought, beyond that possessed by the jury, cannot give his judgment of such value, based upon what he considers the services of the plaintiff worth to him in a line of business not disclosed by the witness.</p>

<p>Error to Marquette. (Grant, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 76 Mich. 139.</p>

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

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

<p>Commissions on sale of real estate — Pleading.</p> <p>1. An agent, in order to recover commissions on the sale of real estate under a writing, signed by the defendant alone, authorizing the agent to sell the land for a specified sum net cash to the defendant, and to retain the surplus as his commission, and which declares that the agreement is to be binding for 60 days, must show that he procured a purchaser of the land able and willing to buy on the terms stated in the writing, of which fact he notified the defendant before the expiration of the sixty days, and before defendant had revoked the authority, or before the agent had knowledge of the sale by defendant of the land to another than his proposed purchaser, and that the failure to consummate the agent’s proposed sale was through some fault of the defendant.1</p> <p>2. In such a case a declaration setting forth the agreement, the securing of a purchaser by the plaintiff in accordance with its terms, the purchase price, and the sale of the land by the defendant, without notice to the plaintiff, is sufficient.</p>

<p>Certiorari to the recorder’s court of Detroit to review proceedings resulting in the conviction of respondents for maintaining a nuisance contrary to the provisions of a city ordinance. (Swift, J.)</p> <p>The facts are stated in the opinion.</p>

<p>Municipal corporations — Failure to 'keep sidewalk in repair — Knowledge or notice of defect — Pleading—Declaration—Demurrer.</p> <p>1. A declaration in a negligence case brought against a city for failing to keep a sidewalk in repair is not fatally defective in ’ not counting upon the statute, unless demurred to. Railroad Co. v. Southwick, 30 Mich. 446.</p> <p>2. Only when no cause of action is stated in the declaration is the defendant justified in pleading 'the general issue, and raising objections to the declaration on the trial.1</p> <p>3. In a negligence case against a city to recover damages for injuries sustained by reason of a defective sidewalk it appeared that the walk was built by a land-owner in front of his property without an order from the.city. The charter gave the city control of all sidewalks in the public streets. And it is held that when the sidewalk was once laid, no matter by whom, it became the duty of the city to see that it was kept in proper repair, and in a safe condition for travel.</p> <p>4. Knowledge on the part of a city street commissioner or alderman of the unsafe condition of a sidewalk, for a sufficient length of time before an accident to repair the walk, is equivalent to notice to the city. Dundas v. City of Lansing, 75 Mich. 509.</p> <p>5. Knowledge of one defect in a sidewalk is not to be inferred by neglect to repair another.</p>

<p>Error to Wayne. (Brevoort, J.)</p> <p>Garnishment. Garnishee defendants Dawson bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Liquor traffic — Approval of bond — Evidence.</p> <p>The certificate of a township clerk indorsed upon a liquor bond filed with the county treasurer, to its approval by the township boai'd, is made authentic evidence of such fact by section 8 of Act No. 318, Laws of 1887, which provides for such approval and certificate.1</p>

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

(Reilly, J.) Bill to enforce an alleged resulting trust under an administrator’s deed, or to set aside the sale and deed. Complainants appeal from a decree dismissing bill. The facts are stated in the opinion.

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

<p>Public lands — Surveys—Evidence.</p> <p>1. The question of the location of a starting point for a surveyor is one of fact for the jury, and not of theory to be determined finally upon the opinion of surveyors or experts.</p> <p>So held, where, after a surveyor had testified that he could not and did not find an original quarter post when making a survey, he was asked whether, in his judgment, the quarter post had or had never been located and established under the original government survey; which question is held to call for an opinion, and not for any fact within the knowledge of the witness.</p> <p>2. An act of Congress directed a resurvey of certain townships, and stated that they had never been properly surveyed. Prior to the passage of the act, certain swamp lands in one of the-townships had been selected by the State under a congressional grant, and had been sold and patented by the State according to the alleged imperfect survey. And it is held that the purchaser had acquired vested rights according to said survey, which could not be disturbed by the act of Congress ordering the resurvey, and that said act is no evidence that the original survey was improper.</p>

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

(Montgomery, J.) Bill to declare an equitable lien, and to set aside a mortgage as fraudulent as to creditors of the estate of a deceased person. Complainant appeals. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to' advertise for bids to construct election booths, under Act No. 263, Laws of 1889. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondent to make return to an appeal attempted to be taken in a case determined in the police court of Detroit. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondent to appoint commissioners to condemn land for drain purposes. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to vacate order extending time for settling bill of exceptions. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondents to expunge from the record of their proceedings a resolution declaring his seat in the council vacant, and to compel them to designate the chairmen of the .several boards of election inspectors and of registration. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondent to file its articles of association in renewal of its corporate existence. The facts are stated in the opinion.

<p>Error to Bay. (Cobb, J.)</p> <p>Trover. Defendant brings error.</p> <p>The facts are stated ill the opinion.</p>

<p>Mortgage — Assignment—Merger—Redemption—Recording laws.</p> <p>A land-owner, after mortgaging his land, sold it, taking back a purchase-price mortgage, payable in four installments, one of which he assigned. His grantee mortgaged the land to the first mortgagee, and then redeeded it to the grantor, who soon after executed a new mortgage to the first mortgagee in lieu of the two mortgages, which were discharged. At this time the assignment had not been recorded, and the first mortgagee had no notice of its existence, but the purchase-price mortgage was of record and undischarged. After the recording of the assignment, the first mortgagee foreclosed the new mortgage, but did not make the assignee a party, who filed a bill to foreclose his interest under the assignment. And it is held that, by failing to record the assignment, the new mortgage took priority over the installment assigned, but that, as the assignment was recorded before the commencement of the foreclosure suit, and the assignee was not made a party, his bill will be treated as a bill to redeem, which he will be allowed to do by paying the amount due the first mortgagee on the new mortgage, and a decree will be entered in his favor for the redemption money, and for the amount of his installment, under which he may sell the land to satisfy said claims.</p>

(Reilly, J.) Bill for an accounting as to a trust fund. Complainant appeals from a decree dismissing her bill. The facts are stated in the opinion.

(Beilly, J.) Petition by a secured creditor, whose debtor has made a general assignment for the benefit of creditors, for the payment of a dividend upon its whole debt, as proved in the assignment proceedings. Defendant appeals from an order directing such payment. The facts are stated in the opinion.

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

(Gartner, J.) Petition by a stockholder of an insolvent corporation to be subrogated to the rights of a creditor whose claims have been satisfied by the foreclosure of a mortgage given by the petitioner for the benefit of the corporation. The facts are stated in the opinion.

<p>Appeal from Livingston. (Newton, J.)</p> <p>Bill to quiet title. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

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

<p>Summary proceedings — Title to land.</p> <p>1. Title to land cannot be tried in summary proceedings to recover its possession under How. Stat. § 8295; Hoffman v. Clark, 63 Mich. 175.</p> <p>2. A complainant in summary proceedings to recover possession of land claimed his title through a sheriff’s deed issued on an execution sale, which the defendant claimed was invalid for the reason that the land belonged to a son of the judgment debtor, who was in possession at the time the levy was made. The defendant’s deed, which he had recorded, contained an exception in the warranty clause as to said levy, which defendant claimed was inserted without his authority, after the deed was executed, he not having agreed to take the land subject to the levy or to satisfy the same. And it is held that an inquiry into the question of defendant’s alleged estoppel to raise the question of paramount title involves of itself the trial of a question of title to land, which was beyond the jurisdiction of the commissioner to try.</p>

<p>' Error to Newaygo. (Palmer, J.)</p> <p>Trespass. Plaintiff brings error.</p> <p>The facts are stated in the opinion and in the head-note.</p>

<p>Error to St. Joseph. (Loveridge, J.)</p> <p>Trover. Defendant brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Error to Muskegon. (Dickerman, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Error to Kalkaska. (Aldrich, J.)</p> <p>Ejectment. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>