Volume 83 — Michigan Reports

Mandamus. Relator applied for mandamus to compel respondent to •certify to tbe statutory fee allowed by Act No. 137, Laws of 1887, for services in a divorce case. The facts are stated in the opinion.

<p> Land contract—Conditions as to building—Deed—Specific performance. </p> <p>1. A land contract contained a clause requiring the erection by the vendee on the premises of a dwelling-house of a specified character and description, to be located a certain distance from the street line, on which street the vendor owned other property. It was also provided that the deed to be executed on performance of the vendee’s covenants was to be subject to said house-line and building restrictions, which are held complied with by the vendee by moving onto the land a house of the agreed character and dimensions, and placing the same in the position, agreed upon as regards the street line.</p> <p>2. In such a case the vendor is entitled to have the like conditions inserted in his deed of the premises, and to insist upon their performance so long as they are of any benefit to him or his grantees.</p>

(Steere, J.) Bill to remove a cloud from complainants title to certain real estate caused by a reservation in a deed, etc. Defendant appeals. The facts are stated in the opinion.'

(Aldrich, J.) Bill to restrain waste upon lands upon which taxes are unpaid, under Act No. 223, Laws of 1889. Complainant appeals from a decree dismissing bill. The facts are stated in the opinion.

(Loveridge, ,7.) Bill to set aside a deed executed by complainant to defendant Whitcomb, and a mortgage from him to his co-defendant, on the ground of the incompetency of the grantor, etc. Complainant, and defendant Whitcomb, appeal from decree setting aside the deed, but holding the mortgage a valid security. The facts are stated in the opinion.

<p>Landlord and tenant—Lease—Forfeiture—Summary proceedings— Appeal—Affidavit—Bond.</p> <p>1. After a defendant had taken an appeal from a judgment of restitution in a summary proceeding to recover possession of lands, he served a notice upon the complainant that he would quit the premises on a certain date, and requested him to divide the property on the leased premises, and subsequently left the land. And it is held that he did not thereby satisfy the judgment appealed from, or admit that he was holding possession unlawfully when the suit was commenced, but that such surrender was an act entirely independent of the judgment and prior proceedings.</p> <p>2, An affidavit in the form commonly used on appeal from justices’ courts, which alleges that a judgment has been rendered against the appellant whereby he is required to leave and deliver up possession of a farm to the appellee, is sufficient on an appeal from a judgment of restitution rendered in a summary proceeding under the statute to recover the possession of the farm.</p> <p>8. How. Stat. § 8807, providing for an appeal from judgments in summary proceedings to recover the possession of lands, does not, in express terms, provide that the commissioner shall indorse on the bond either that he has fixed the penalty or approved the bond; and when a bond is accepted in a certain penalty, and an appeal granted by making a return of the proceedings had before the commissioner, with the affidavit and bond on such appeal, it will be presumed in favor of.the jurisdiction of the appellate court that the commissioner not only approved the bond, but fixed its penalty according to law.</p> <p>4. A farm lease provided for the working of the farm in a good and workman-like manner, and, in case of a failure so to do, reserved to the lessor the right to perform the work, and deduct the cost from the lessee’s share of the crops, who was given full possession of the house on the farm during his tenancy, without compensation therefor. The forfeiture and re-entry clauses were stricken from the printed blank used in preparing the lease. And it is held that the right of the tenant to remain in possession of the farm during the term of the lease did not depend upon the manner of his performance of the agreement as to working the same, and that non-performance of this agreement would not forfeit the lease.</p> <p>[The points of counsel are stated in the opinion. —Reporter.]</p>

<p> Railroad companies—Condemnation proceedings—Special questions to jury. </p> <p>There is no provision in the statutes relative to condemnation proceedings authorizing the submission of special questions to the jury.</p>

(Gage, J.) Railroad condemnation proceedings. Respondents appeal from the award of the commissioners. The facts are stated in the opinion.

<p> Negligent driving—Submission of question to jury. </p> <p>This case is ruled by Boielc v. Bissell, 80 Mich. 260, and the question of the negligence of plaintiff and of defendant was properly submitted to the jury.</p>

<p>Error to superior court of Grand Eapids. (Burlingame, J.)</p> <p>Attachment suit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p> Appeal-—Credibility of ivitnesses. </p> <p>This case turned entirely upon the credibility of the witnesses, and mainly upon that of the parties, and, no error appearing in the charge or in the admission of testimony, the judgment is affirmed.</p>

(Reilly, J.) Summary proceedings to obtain the possession of land. Defendant brings error. The facts are stated in the opinion.

<p> Justices' courts—Appeal—Joint defendants. </p> <p>An affidavit for an appeal from a judgment against two joint defendants was made by one of them in behalf of both, who executed the required bond, with one surety, but it was not executed by his co-defendant, nor did he appear in the circuit court; and it is held that the justice’s judgment, as to said defendant, remained unaffected by the appeal, and that said defendant was not entitled to enter his appearance in the circuit court, nor to a notice of trial.</p>

<p> IAguor traffic—Civil damage aet—Pleading—Declaration—Amendment. </p> <p>1. In a suit by a wife to recover damages alleged to have been sustained by reason of the sale of liquor to her husband when intoxicated, it is not necessary to allege that the saloon-keeper knew that he was intoxicated, that fact being presumed from the very nature of the case.</p> <p>2. A declaration alleged the delivery and furnishing of intoxicating liquors to plaintiff’s husband between certain dates, he being a person in the habit of getting intoxicated, so that he became wasteful and careless of his means, and deprived plaintiff of her proper support, and finally, on a specified day, by reason of such liquors furnished, in whole or in part, by the defendant, was fatally wounded, whereof he died; and that plaintiff, by means of such furnishing of • liquors to her said husband, became greatly injured in her person, and also in her means of support. On the trial an objection was made to the admission of any testimony, on the ground that the declaration did not set forth a cause of action, which was sustained, and a verdict directed for the defendants, before the rendition of which the court refused an application by the plaintiff to amend. And it is held that the declaration contained all of the elements of statutory liability, and that'the only objection, in substance, that could be raised to it is the failure to allege the defendant’s knowledge that the husband was in the habit of getting intoxicated, so as to make the sale clearly unlawful; and that,, when such aTquestion is raised for the first time on the trial, an amendment should be allowed; citing Ryan v. Fralick, 50 Mich. 483, as laying down the correct practice.1</p>

<p>Landlord and tenant—Lease—Mode of occupation—Covenants— Injunction.</p> <p>1. A consent by a lessor that a third party may occupy the leased premises for a specified business under the lessee, who is to be responsible for the rent, is a restrictive waiver of conditions not to sublet or carry on any other than the kind of business to which the lessee is restricted by the lease, and applies only to such third person and to his specified business.</p> <p>2. Covenants affecting the mode of occupation and enjoymert of leased premises run with the land, and the assignee, tin u ;h not named, may be restrained by injunction from violating the same.</p> <p>So held, where a lease restricted the use of the building to the “sale of teas, coffees^ and similar goods,” and the lessors ■consented to its use by a sublessee for the sale of small musical instruments and sheet-music, who sublet it to be used for a misfit clothing house, which use was enjoined at the suit of the original lessors.</p>

Joseph. (Loveridge, J.) Bill to compel the directors of a corporation to declare ■and pay a dividend. Complainant appeals from a decree -dismissing her bill. The facts are stated in the opinion.

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

(Burlingame, J.)' Bill to remove a cloud caused by the sale of complainant’s land in satisfaction of a special assessment, etc. Defendant appeals. The' facts are stated in the opinion.

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

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

<p> Land contract—Specific performance—Parties—Execution levy. </p> <p>1. The right of a vendee to the specific performance of a land contract cannot be cut off by fraudulent attachment levies, nor by the levy of a valid attachment or execution against the vendor after the date of the contract.</p> <p>2. Equity, having once taken jurisdiction to enforce the specific performance of a land contract, will retain it to adjust the conflicting claims to the purchase money, which the vendee will be decreed to bring into court for the party entitled to it; citing Thurston v. Prentiss, 1 Mich. 198; Hanchett v. McQueen, 32 Id. 25; Stevenson v. Jackson, 40 Id. 702.</p> <p>3. An attachment or execution creditor is a proper party to a bill to enforce the specific performance of. a land contract, for at most he stands in the place of the vendor, and is bound by his duty, if he claims his interest in the land; citing Morris v. Hoyt, 11 Mich. 17; Daily v. Litchfield, 10 Id. 36; Woodward v. Clark, 15 Id. 104; Rogers v. Odell, 36 Id. 411; Chapman v. Morgan, 55 Id. 126.</p>

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

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

<p> Contributory negligence—Charge to jury. </p> <p>A request: for an instruction in a negligence case that if the defendant knew that the plaintiff was about to oil a saw, and assented to. it, and while plaintiff was oiling it negligently pushed plaintiff onto the saw, he may recover damages for the injuries thereby occasioned, is defective in omitting the important element of plaintiff’s non-negligence.</p>

<p> Trespass—Injury to animal—Insufficient evidence, </p> <p>In this case plaintiff sought to recover the value of a horse whose leg was broken,-as alleged, by defendant’s throwing a stone while chasing the animal from his father’s wheat field. And it is held that a verdict should have been directed in favor of defendant for want of evidence tending to make out plaintiff’s case;</p>

<p> Divorce—Habitual drunkenness. </p> <p>1. Occasional intoxication is not habitual drunkenness in a woman; any more than it is in a man.</p> <p>2. The strong man ought to relinquish the gratification of the' same appetite for drink that he asks the weak woman to give up.</p> <p>3. In this case a divorce was granted in the court below on the grounds of habitual drunkenness and extreme cruelty, which decree is reversed for reasons stated in the opinion.</p> <p>[Briefs of counsel are confined to a review of the testimony.—Reporter.]</p>

<p>Garnishment—Fraudulent conveyances—Constitutional law. *</p> <p>Act No. 244, Laws of 1889, amendatory of How. Stat. §g 8059 8091, which extends their operation so as to enable creditors to reach the value of property of the principal defendant received and held by the garnishee under a conveyance or title void as to creditors, and which he has disposed of, applies to garnishment proceedings instituted after the act took effect, although the goods were received and disposed of prior to that date.</p>

<p> Statute of frauds—Purchase of goods—Agency—Contract construed. </p> <p>1. An agreement by a retail grocer to include in his annual order for canned goods a certain amount for a commercial broker residing in the same city, to be paid for on delivery, is held not to make a case of bargain and sale, but of agency.</p> <p>3. In such a case a request by the broker, made the following year, to order goods “the same as the year before,” is held to include payment on delivery.</p> <p>3. Where in such a case the second order was amended by changing the variety of tomatoes included therein, which change was not made, but the broker did not base his refusal to receive the goods sent on that ground, he cannot urge that as a defense in a suit by the grocer to recover the purchase price, which he had paid to the vendors.</p>

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

<p>Municipal corporations—Defective sidewallc—Pleading—Evidence— Charge to jury.</p> <p>1. Evidence of the fracture of plaintiff’s arm is admissible under a declaration averring that his arm and leg were “ cut, sprained, bruised, wounded, and injured,” and that he was “so injured in his said arm and leg as to permanently injure and cripple him for life.”</p> <p>2. Resolutions of a village council ordering the repair of a sidewalk, passed from time to time during the two years preceding the injury complained of, are admissible to show knowledge on the part of the village of condition of the walk, when accompanied by proof of its non-repair and of continued bad condition.</p> <p>3. In such a case a witness for the plaintiff, who had testified to the bad condition of the walk prior to the accident, was asked to state how or in what manner he had discovered its condition, and answered that the boards were loose, and jiggled under his feet, and that he stumbled on the boards, and had seen others stumble, but without falling down. And it is held that both the question and answer were competent, the question not necessarily opening the door to collateral issues, and falling within the spirit of the rule adopted in Smith v. Sherwood Township, 62 Mich. 159.</p> <p>4. It is highly proper, and oftentimes the duty of the trial judge in his charge, to refer to and comment upon the statements of the counsel in their arguments, and he who objects to such comments must show by the record that he has been misquoted.</p>

<p> Will—Construction—Description of lands. </p> <p>1. This case involves the construction of certain devises in a will, and the following rules of construction are held applicable:</p> <p>a—The plain intent of the testator as evinced by the language of the will must prevail.</p> <p>b—Such intent must be gathered from “ the four comers of the instrument.”</p> <p>c—The construction is not to be varied by events subsequent to the execution of the will,</p> <p>d—A gift by words of general description is not to be limited by a subsequent attempt at a particular description, unless such appears to have been the intention of the testator as gathered from the whole, will.</p> <p>2. An examination of the opinion, and of the plat incorporated therein,' is essential to a full understanding of the facts of this case.</p>

(Judkins, J.) Original bill filed to enjoin the cutting and removal of timber by the defendants, who filed a cross-bill praying that they be decreed the owners of an undivided part of the timber, with the right to cut and remove the same, and, if necessary, that partition might be made thereof. The facts are stated in the opinion.

(Reilly, J.) Judgment creditors’ bill. Defendants Wilson, Lutber, and Wilson appeal from decree overruling .demurrer. The facts are stated in the opinion.

<p> Creditors’ bill. </p> <p>This case is ruled by the opinion in First National Bank of Mauch Chunk v. Dwight, ante, 189.</p>

<p>Certiorari to review proceedings laying out a highway.</p> <p>The facts are stated in the opinion.</p>

Joseph. (Loveridge, J.) Bill to foreclose a mortgage. Defendant Welborn appeals from an order directing the payment to the petitioner, defendant Pratt, of one-half of the surplus realized on a sale of the premises. The facts are stated in the opinion.

<p> Principal and agent—National bank—Contract—Liability of cashier —Judgment—Evidence. </p> <p>1. The cashier of a national bank wrote a letter to the cashier of a bank in 'a neighboring state stating, in effect, that, if he would sign a bond for customers of the writer’s bank to enable them to commence a replevin suit, “we will stand between you and all harm,” which letter he signed officially. And it is held that the agreement was one which the national bank had no power to enter into, and that it cannot be said that the letter, upon its face, appears so clearly to have been intended as the undertaking of the bank, executed through the writer as its cashier and agent, as to bring it within the rule that his want of authority to bind the. bank, for which he assumed to •act, does not render him individually liable, when the facts and circumstances indicate that no such liability was intended by either of the parties.</p> <p>H. The judgment record in a suit upon a replevin bond brought in the state of Indiana showed a copy of the bond set out at length in the complaint, as the only cause of action relied on; and it is held that it will be presumed in support of the judgment that it was rendered after due proof of the execution of the bond declared on.</p> <p>3, Where a paper is beyond the jurisdiction of the courts of this State, its contents may be shown by secondary evidence.</p> <p>4. Whether a judgment was secured by fraud ,and collusion. is a question to be submitted to the jury under proper instructions,</p>

(Hooker, J.) Bill to remove a cloud caused by mortgages claimed to be outlawed under Act No, 204, Laws of 1879, and to set aside statutory foreclosures of the same. Answer claims the benefit of a cross-bill, and prays that the foreclosure proceedings be declared valid. The facts are stated in the opinion.

Joseph. (Loveridge, J.) Assumpsit. Defendant brings error. The facts are stated in the opinion, and in the former reports of the case.

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

<p> Action—Name of plaintiff—Open account—Amount due. </p> <p>1. A plaintiff who is the sole proprietor of a business which he carries on under a firm, name has the right to sue a debtor in his individual name, and in fact can sue in no other way.</p> <p>2. Where, after proving the amount due on an open account by the admissions of the debtor, an affidavit of the amount due, made and served pursuant to How. Stat. § 7525, was received in evidence against the objection of the defendant, the reception of such evidence, even if inadmissible, is non-prejudicial error.</p>

<p>Mortgage—Assignment of part interest—Foreclosure—Redemption— Evidence,</p> <p>1. Where there are several notes secured by a mortgage, neither has priority over the others by reason of maturing at an earlier date, but all have an equal claim to be paid ratably out of the land; citing Cooper v. Ulmann, Walk. Ch. 251; English v. Carney, 25 Mich. 178; McCurdy v. Clark, 27 Id. 447.</p> <p>2. A mortgagee sold two of three mortgage notes, and assigned a corresponding interest, in the mortgage, which fact was stated in the assignment. And it is held that parol testimony is inadmissible to show an alleged agreement that the assignee was to have a priority of lien under the mortgage as security for the payment of his notes.</p> <p>3. The assignee of an interest in a mortgage corresponding to two of the three notes, which he had purchased, foreclosed the mortgage by advertisement, and on the expiration of the redemption year took possession of the mortgaged premises under his sheriff’s deed. The assignor commenced a suit to foreclose his interest in the mortgage, and secured a decree setting aside the statutory foreclosure, and directing a sale of the land, and a division of the proceeds realized thereon between the assignor and assignee according to their respective interests. And it is held that the statutory foreclosure did not affect the relative rights of the assignor and assignee, but that, as the assignee had purchased the equity of redemption, he had the right to redeem from the lien of the assignor under the mortgage, and that, failing to do this within six months, the premises be sold as in ordinary foreclosure cases, and the moneys realized divided according to the respective interests of the parties.</p>

Mandamus. Belator applied, for mandamus to compel the payment of certain moneys in respondent’s hands arising from the tax on dogs, under Act No. 214, Laws of 1889. The facts are stated in the opinion.

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

<p> Covenant—Breach—Outstanding lease—Evidence—Damages. </p> <p>1. In an action for breach of covenant parol proof is inadmissible-to show that an existing incumbrance was agreed by the parties to be regarded as in fact no incumbrance.</p> <p>2. The following general propositions are summarized from- the opinion of Mr. Justice Morse:</p> <p>a—The doctrine established by Vos v. Dykema, 26 Mich. 899; Perrin v. Lepper, 34 Id. 292; Hansen v. Prince, 45 Id. 519; and Haldane v. Sweet, 55 Id. 196,—is that the deed passes to the purchaser the right to collect the rent from the tenant, who-cannot prevent such collection by refusing to attorn to him.</p> <p>b—It is as usual, and certainly as competent, to covenant against known as unknown incumbrances or defects of title, and with such a covenant the purchaser is not called upon to exercise any diligence; citing Smith v. Lloyd, 29 Mich. 382.</p> <p>c—Where it is shown by parol that, after the delivery of a. deed with a covenant against incumbrances, the grantee accepts-an existing tenancy and receives the rent from the tenant, the amount of rent received is properly deducted from the damages found in his favor in an action for breach of such covenant by reason of such outstanding tenancy.</p>

<p> Highways—Proceedings to establish—Town-line road. </p> <p>Proceedings for laying out a township-line road must be taken jointly by the highway commissioners, under How. Stat. §§ 1296, 1305, and such action by one commissioner is void.</p>

<p> Appeal—Findings of court—Exceptions—Assignments of error. </p> <p>1. An exception to a conclusion of law is indispensable to its review in the Supreme Court. McMillan v. Cheese Factory, 23 Mich. 544.</p> <p>2. A finding of fact, if supported by any evidence, is conclusive, and a party failing to except to a finding of law is regarded as' acquiescing therein.</p> <p>3. The judgment in this case is affirmed, it not being assigned as error that the facts found do not support the judgment.</p>

<p>Error to St. Joseph. (Loveridge, J.)</p> <p>Assiompsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Assignment for benefit of creditors—Failure to file bond—Fraudulent conveyances—Trover—Practice in circuit court— Objections to testimony.</p> <p>1. It is the duty of an attorney who objects to the admission of testimony to state the grounds of his objection, and unless this is done the objection will not be considered in the Supreme Court.</p> <p>2. The failure of an assignee under an assignment for the benefit of creditors to file the statutory bond will not entitle a mortgagee whose mortgage is fraudulent as to creditors to recover in an action of trover brought against the assignee for the value of the mortgage interest in the assigned property.</p> <p>3. The filing and approval of a bond by an assignee under an assignment for the benefit of creditors after the statutory ten days will not operate to vest in him the title to the assigned property.</p>

(Smith, J.) Bill to set aside deed on the ground of fraud, and for .general relief. Complainant appeals. The facts are stated in the opinion.

<p> Bills and notes—Promise to receive chattels in payment—Consideration. </p> <p>A promise by the payee in a note, made after its maturity, to receive in payment 200 posts for $10, and apply the same upon the note, the maker agreeing to get out the posts as soon' as-his fall’s work was done, and have them ready for delivery upon his farm, is without consideration, and of no validity until performed by the delivery and acceptance of the posts.</p>

(Brevoort, J.) Bill to restore a lost deed. Complainant appeals from an order dissolving a preliminary injunction, and restoring defendant to her possession of the land. The facts are stated in the opinion.

(Full bench.) Proceedings to condemn land for union depot purposes under Act No. 244, Laws of 1881. Respondents appeal from an award of $86,000 in their favor. The facts are stated in the opinion.

(Ramsdell, J.) Respondent was convicted of murder, and sentenced to State prison for life. The facts are stated in the opinion.

<p>Certiorari to a justice of the peace of the city of Muskegon to review proceedings to condemn land for public use.</p> <p>The facts are stated in the opinion.</p>

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

(Edget, J.) Bill to enjoin the construction of appliances for the use of electricity in the operation of a street railroad in front of complainant’s premises, and to enjoin the use of electricity for the operation of said road. Complainant appeals from a decree dismissing his bill. The facts are stated in the opinion.

(Edget, J.) Bill to enjoin the construction of appliances for the use of electricity in the operation of a street railroad in front of complainant's premises, and to enjoin the use of electricity for the operation of said road. Complainant appeals from a decree enjoining the erection of poles in front of her premises without her consent, which decree is affirmed, with costs to defendant. The facts are stated in the opinion, and in Potter v. Street Railway, ante, 285.

<p> Assignment for benefit of creditors—Execution—Bill in equity. </p> <p>1. A deed executed prior to the passage of the statute regulating the making of assignments for the benefit of creditors, which purports to convey all of the grantor’s property to the grantees in trust for the use and benefit of his creditors (with preferences) and which is signed and acknowledged by the grantor and grantees and placed upon record in the proper office, is upon its face a valid conveyance of all the grantor’s property for the uses therein stated.</p> <p>2. Joining in such a deed, and placing it upon record after the execution was completed, is conclusive of acceptance by the grantees; citing Bank v. Mosser, 57 Mich. 389.</p> <p>8. In such a case a creditor obtained a" judgment against the assignor after the making and acceptance of the assignment deed, and levied upon a portion of the assigned land, which was sold without filing a bill in aid of execution. As a matter of fact the assignees never acted under or attempted to execute the trust, aud some years after the execution sale they executed a quitclaim deed to the assignor of the land, who conveyed it by warranty deed. And in a suit in equity brought against the grantee in said warranty deed, in which the complainant claimed title to the land through the execution sale and attacked the assignment deed as fraudulent and void, it is held that the legal title passed to the assignees under the assignment deed, and was vested in them at the time of the execution sale, under which the purchaser acquired, at the most, only the interest of the assignor at the time of the levy, and that he could not sell the land in the face of such assignment deed, and purchase it on such sale, and then seek in equity to set aside the assignment deed as fraudulent as to creditors, or because of the failure of the assignees to execute the trust for the creditors generally.1</p>

<p>Appeals from Osceola. (Judkins, J.)</p> <p>Bills to quiet title. Defendants appeal.</p> <p>The facts are stated in Wolf v. O’Conner, ante, 301.</p>

<p> Malpractice—Evidence—Charge to jury. </p> <p>1. The plaintiff in a malpractice case was asked to state whether or not the pain in . her knee and the difficulty that she had experienced from it, including the swelling, was, as far as she could tell by any feeling, connected with the point of injury where her leg was broken; the answer to which question is held to have been properly excluded, the witness not being an expert, and therefore not competent to testisfy as to what was the cause of such pain.</p> <p>2. Where in a malpractice case the declaration alleges that in setting plaintiff’s broken leg the defendant was guilty of negligence, and that he negligently and carelessly injured the ligaments of the knee, resulting in permanent lameness and deformity, a charge which treats the question at issue as one of neglect in the care of the broken limb, rather than as one of an injury to the knee, caused by such alleged negligence on the part of the defendant, is erroneous.</p> <p>3. The court instructed the jury in a malpractice case that they were necessarily bound, independent of every other consideration, to adopt the testimony of the physicians and surgeons, when they came to determine whether, on the facts in the case, the defendant had treated the case in a proper form, and by the use -of proper appliances, and in the same connection stated that no other witnesses than such physicians and surgeons had undertaken to testify on that subject; which instruction is held ■unobjectionable, it being the province of the other witnesses to give the facts as to the treatment and acts of the defendant, and for the physicians and .surgeons to say whether or not the same were proper.</p>

<p> Divorce—Extreme wuelty. </p> <p>A husband deeded to his wife his homestead, worth from four to five thousand dollars, and gave her all of the household furniture, which constituted the bulk of his property. For some time after his wife refused to cohabit with him, he was allowed the privilege of a room in this house, but was finally driven from it, and his wife moved to another city, and rented the homestead to strangers, which action on the part of the wife is held to be extreme cruelty.</p>

<p>Error to Berrien. (O'Hara, J.)</p> <p>Ejectment. Defendant brings error.</p> <p>The facts are stated in the opinion, and in former report of the case.</p>

<p>Error to Berrien. (O’Hara, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p> Negligence—Railroad companies—Injury to section employe—Fellow-servants—Contributory negligence—Evidence. </p> <p>1. Without deciding whether, under all circumstances, a section foreman must be considered as a fellow-servant Of the men working under him, so as to relieve the common employer from liability for his negligence, it is very clear that where, as in. this case, the sole act of negligence relied on is participated in, and voluntarily consented to, by the injured workman, with full knowledge of the peril, the question of the master’s liability does not arise.</p> <p>So held, where the negligence charged was that, with knowledge of an approaching train, the section foreman continued to propel a hand-car along a curved portion of the track running through a deep cut without sending a lookout ahead to give warning, in which conduct the injured workman participated with full knowledge of the hazard, he having been running up and down the same section daily for three months, and it not appearing that he was acting under the express orders of the foreman in remaining on the car, or that he remained thereon against his will.</p> <p>3. In such a case evidence that the foreman was intemperate to an extent which made him an unsafe and unfit man for his position is irrelevant, it not being claimed that he had been drinking, or was under the influence of liquor, on the day of the accident.</p>

<p>Principal and surety—Change in contract—Release of surety— Burden of proof.</p> <p>1. The change in the terms of an agreement which will operate to-discharge a surety must have been made by the intentional act. of the original parties.</p> <p>2. A land-owner agreed to advance a specified sum, to be used in-erecting a hotel on the land, which the party to whom the-advances were to be made was to lease for a term of years at a fixed rental, payable quarterly in advance, for the payment of which rent a third party became surety. After the completion of the buildings a lease was executed between the parties,, by which the rent was máde payable at the end. of each-quarter. Suit was brought against the lessee and the surety upon the original agreement to recover rent, after which the lessor filed a bill to reform the lease so as to conform to the agreement as to the time of payment of rent, he claiming that the change was made by mistake in drafting the lease. The surety was not made a party, and a pro confesso decree was. secured reforming the lease, as prayed. On the trial of the suit at law the decree and antez'ior proceedings were received in evidence without objection. The surety introduced the testimony of two witnesses tending to show that the change as to time of payment of rent was intentional, which testimony was uncontradicted. The circuit judge held that the surety was discharged, and directed a verdict for the defendants, and in affirming the judgment it is held: a—As between the parties to the chancery suit, the decree is. conclusive that the change as to time for payment of rent was made by mistake; but the same rule does not apply to the surety, who if made a party, could have shown in the chancery suit, and may show in the suit at law, that the change was intentionally made, thereby discharging him from liability-b—This defense is made out, prima facie, by the introduction of the lease, and is rebutted by the introduction of the enrolled decree, and the burden is cast upon the surety to negative the alleged mistake, which he is held to have done by the testimony of the witnesses before referred to.</p>

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

<p> Taxes—Cost of advertising and sale—Payment. </p> <p>The one dollar which the Auditor General is authorized by section 52 of Act No. 195, Laws of 1889, to add to the amount of taxes due on a parcel of land, for advertising and other expenses of sale, cannot be demanded of the tax-payer until after the tax petition has been filed and published as provided by section 54 of said act.</p>

Exceptions before judgment' from Chipjiewa. (Steere, J.) Respondent was convicted of keeping his saloon open after legal hours. The facts are stated in the opinion.

<p>Practice in circuit court—Findings of fact—Chattel mortgage— Payment— Usury,</p> <p>1. Error cannot be assigned upon the action of the trial judge in permitting the attorney for the prevailing party to prepare a draft of proposed findings of fact in the case.</p> <p>2. It is the province of the circuit judge, sitting as a trial court, to find all the facts which thé testimony in the case tends to prove, and all inferences of fact which are or may be drawn from the testimony must be drawn by the trial court; and the appellate court cannot draw any inferences from the testimony contrary to the facts found by the court below; citing Mills v. Van Camp, 41 Mich. 645; Treasurer v. Bunbury, 45 Id. 79; Butts v. Davis, 50 Id. 310; Edwards v. Nelson, 51 Id. 121; Neumann v. Mining Co., 57 Id. 97.</p> <p>3. Plaintiff loaned defendants $56, taking as security a chattel mortgage on a piano and certain household goods payable in 30 days, without interest, and calling for $60. He retained $1, for drawing the mortgage, and $3 for advance interest for one month. After the defendants had paid $33 in equal monthly payments, which were receipted for as interest in full up to the end of the succeeding month, they made a further loan of $20, and gave a new mortgage in the name of a clerk in plaintiff’s office, for $84, payable in 30 days, and the first mortgage was discharged. This was done without any settlement being had between the parties. The second mortgage was subsequently assigned to plaintiff. After defendants had paid $40 on the second mortgage in monthly payments, which were receipted for as interest, and which receipts provided for monthly extensions, the defendants refused to make any further payments, and tendered the balance they claimed to be due on the mortgage, which tender was refused, and plaintiff replevied the property. The case was tried before the circuit judge without a jury, who found the foregoing facts, and that the giving of the mortgages was virtually one transaction,, there being no settlement, and that the payments made, with the sum tendered, were sufficient to discharge the mortgage-lien, and rendered judgment for the defendants, which is affirmed.</p>

' (Keilly, J.) Bill to foreclose a mortgage. Defendants Federal Bank of Canada and Herbert C. Hammond appeal from final decree entered June 18, 1890, authorizing foreclosure sale at any time after November 11, 1890. The facts are stated in the opinion.

Mandamus. Applications for mandamus to compel respondent board to declare relators elected to the ''office of alderman of their respective wards. The facts are stated in the opinion.

(Burch, J.) Judgment creditors’ bill against a corporation and a portion of the stockholders. Complainant appeals from decree dismissing the bill on demurrer. The facts are stated in the opinion.

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

(Reilly, J.) Bill for specific performance of a land contract, and to set aside a subsequent conveyance of the land by defendants Weber to their co-defendant. Complainants appeal from a decree dismissing their bill. The facts are stated in the opinion.

(Reilly, J.) Bill to reform a mortgage on a building, and declare it to be a real-estate mortgage, and to foreclose the same. The facts are stated in the opinion.

(Hosmer, J.) Assumpsit. Defendants bring error. The facts are. stated in the opinion, and in the former report of the case.

(Full bench.) Proceedings to condem land for purposes of union depot. Respondents appeal from an award of $10,000 and $21,000 respectively. The facts are stated in the opinion.

<p>Error to Berrien. (O’Hara, J.)</p> <p>Replevin. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p> Railroad companies—Injury at highway crossing—Contributory negligence. </p> <p>In this case it is held that in any view which can be taken of the testimony of the witnesses who saw the conduct of plaintiff’s decedent, the substance of which is given in the opinion, it appears that he was'not in the exercise of that care and caution which under the repeated decisions of this Court it was his duty to observe in approaching and crossing a railroad track.</p>

<p> Contributory negligence. </p> <p>When the testimony shows affirmatively that the party who is injured through the negligence of another was himself negligent, and that such negligence contributed to bring about the result complained of, and such testimony is neither conflicting nor contradictory, it becomes a question of law for the court to decide whether there is any fact disclosed by the testimony to go to the jury upon the question of contributory negligence.</p>

<p> Fraudulent purchase—Mortgage—Good-faith holder—Value. </p> <p>Whatever the rule may be in the case of negotiable instruments, it is well settled that a conveyance of lands or chattels, as a security for an antecedent debt, will not operate as a purchase for value, or defeat existing equities; citing 2 Amer. Lead. Cas. (5th ed.) 233; Stone v. Welling, 14 Mich. 514; Boxheimer v. Gunn, 24 Id. 372; Kohl v. Lynn, 34 Id. 360; Edwards v. McKernan, 55 Id. 523.</p> <p>So held, where a vendor, who had the right to rescind the ¡Sale for fraud on the part of the vendee, replevied the goods from a trustee of mortgagees whose mortgages were given to secure bona fide antecedent indebtedness, and who took the same without notice or knowledge of the rights of the vendor.</p>

<p>Error to Wayne. (Lane, J., presiding.)</p> <p>Trover. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

Oertiorari to recorder’s court of Detroit. (Chambers, J.) Certiorari to review couviction of respondents under city ordinance for 'depositing manure in an alley. The facts are stated in the opinion.

<p>Appeal from Newaygo. (Palmer, J.)</p> <p>Petition for sale of delinquent tax lands under Act No. 195, Laws of 1889. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

(Reilly, J.) Petition for sale of lands delinquent for taxes, under Act No. 195, Laws of 1889. Petitioner appeals. The facts are stated in the opinion.

(Reilly, J.) Petition for sale of lands delinquent for taxes, under Act No. 195, Laws of 1889. The board of auditors of Wayne county appeal from decree dismissing petition in so far as it refers to land of defendant. The facts are stated in the opinion.

Appeals from Mackinac. (Steere, J.) Petitions for sale of lands delinquent for taxes, under Act No. 195, Daws of 1889. Defendants appeal. The facts are stated in the opinion.

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

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill to enforce a mechanic’s lien. Defendant ■ Reid appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Mortgage foreclosure—Attorney's fees—Surplus—Bills and notes— Consideration—Principal and agent—Evidence—Day-book entries.</p> <p>1. An entry in the handwriting of a deceased party, made in a day-book kept by him in his life-time in the regular course of business, is competent evidence; citing Price v. Earl of Torrington, 1 Smith, Lead. Cas. (8 Amer. ed.) 563, and notes.</p> <p>2. It is always competent to show the consideration for which a promissory note was given unless the rights of a bona fide purchaser have intervened.</p> <p>8. The excess paid by a purchaser at a statutory foreclosure sale above, the amount due, by reason of the addition of attorney’s fees, belongs to whoever is entitled to the surplus arising on such sale, and cannot he claimed by the purchaser.</p> <p>4. A principal is chargeable with such facts as are known to his agent.</p> <p>So held, where an attorney at law, having funds to invest for a client, purchased for him a note with knowledge that a portion of .the consideration for which it was given consisted of attorney’s fees added to the amount claimed to be due on a statutory foreclosure, of which fact the client was ignorant, taking .no part in the purchase of the note.</p>

(Judkins, J.) Petition for payment of claim against an insolvent estate. Petitioner appeals. The facts are stated in the opinion, and in 80 Mich. 67.

<p>Error to G-ratiot. (Daboil, J.)</p> <p>Replevin.</p> <p>The facts are stated in the opinion.</p>

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

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

(Hosmer, J.) Petition to declare a debt due the petitioner for labor a preferred claim against an insolvent corporation, under Act No. 94, Laws of 1887. Petitioner appeals. The facts are stated in the opinion.

<p> Damages—Error without prejudice. </p> <p>1. Where the damages are capable of accurate pecuniary estimation, exemplary damages can never be allowed; citing Warren v. Cole, 15 Mich. 273; Stilson v. Gibbs, 53 Id. 280; Wilson v. Bowen, 64 Id. 133.</p> <p>2. It is not the duty of an appellate court to reverse a judgment for non-prejudicial error.</p>

<p>Certiorari to review habeas corpus proceedings resulting in the discharge of an inmate of the insane asylum.</p> <p>The facts are stated in the opinion.</p>

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

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

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

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill in aid of execution. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

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

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

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

<p> Taxes—Seizure of property—Liability of treasurer—Drains—Law of 1885—Reassessment of tax—Constitutional law. </p> <p>1. A township treasurer is not liable in trover for property seized under a tax roll and warrant fair upon their face.</p> <p>2. The drain law of 1885 (Act No. 227), in so far as it provides that drain taxes levied under the di'ain law of 1881 (Act No. 269) shall be a personal claim against the land-owner until paid, is invalid.</p> <p>3. A tax roll and warrant under which the treasurer is commanded to collect of a land-owner reassessed drain taxes originally levied under the drain law of 1881, which facts appear upon the roll and warrant, are not fair upon their face, the officer being charged with the invalidity of Act No. 227, Laws of 1885, under which he has seized property to satisfy said tax.</p> <p>[The points of counsel and authorities are stated in the opinion.—Reporter.]</p>

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

<p>Appeal from Barry. (Hooker, J.)</p> <p>Bill for specific performance. Complainant appeals from decree dismissing bill.</p> <p>The facts are stated in the opinion.</p>

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

Mandamus. Delator applied for, mandamus to compel respondent to set aside an order granting a defendant leave to amend its plea by adding an affidavit denying the execution of certain bonds sued upon. The facts are stated in the opinion.

<p> Accounting—Fraud—Bill in equity—Parties—Attorney and client. </p> <p>In this case it is held that the personal representatives of a deceased trustee, who received the fund in which complainants were interested, and of which they claim to have 'been defrauded, are necessary parties, and the case is remanded, with leave to complainants to join such representatives as defendants, and, after issue is joined, further proofs to be taken, those already taken to stand as proofs in the cause.</p>

<p> Libel and slander—Evidence—Malice—Jury—Untrue verdict— Attaint. </p> <p>1. To charge that a jury have perjured themselves in rendering a certain verdict is libelous.</p> <p>2. In a libel suit brought by 'a juror against the proprietor of a newspaper for charging that the jury in a certain case, of which the plaintiff was a member, perjured themselves in rendering their verdict, the plaintiff' cannot be questioned concerning the verdict, or his motives or reasons for finding the same; such mode of questioning falling within the prohibition of How. Stat. § 7608, abolishing the common-law remedy of attaint upon untrue verdicts.</p> <p>8. The trial judge cannot upon his own motion reject a qualified juror with whom the parties are satisfied, unless for sufficient cause, which should appear upon the record.</p> <p>4. On the trial of a libel suit brought by a juror against a newspaper proprietor for charging that a jury of which plaintiff was a member perjured themselves in rendering their verdict, and in which the defendant gave notice of justification, the plaintiff was ashed on his direct examination if any influence other than that of the evidence and instructions of the court and arguments of counsel was brought to bear upon him in the consideration and finding of his verdict, which question is held to call for immaterial testimony, no such fact being in issue.</p> <p>5. Plaintiff’s counsel offered in evidence a paper signed by the ■ plaintiff and the other members of the jury, requesting the defendant to retract the alleged libelous charge, which was admitted, but its reading to the jury made subject to proof that it reached the defendant, which ruling is sustained.</p> <p>6. The plaintiff was allowed to be asked on cross-examination if' there were not publications in all of the newspapers in the city where the verdict was rendered in which it was severely criticised, which is held not to have been an abuse of the discretion of the trial court, the alleged libelous article having characterized the verdict as extraordinary, and the testimony tending to show that it was so regarded by the public.</p> <p>7. Evidence of the publication by a defendant in a libel suit, after its commencement, of an article in which the alleged libelous article was republished, with comments thereon, is admissible-as showing malice on the part of the defendant.</p>