Volume 84 — Michigan Reports

<p>Libel and slander — Pleading—Damages—Evidence—Practice in circuit courts — Conduct of counsel and court.1</p> <p>1. The fact that an article is libelous per se does not render evidence of special damages, or of specific acts of others towards the plaintiff in consequence of its publication, admissible, unless alleged in the declaration.</p> <p>2. Under an allegation of general damages in a libel suit, the issue is, what damages has the plaintiff sustained generally in the community where he is known, by the publication of the libelous article? and not what he has suffered in individual instances where those who have known him have treated him differently from what they did before. In the latter case, if he wishes to recover damages, he must allege them.</p> <p>8. A son was made trustee of his father’s estate, and changed his residence to accept the trust. He brought a libel suit for an alleged false publication charging him with having “ got away with the property,” and with leaving his parents in a starving condition, and on the trial one of his witnesses was asked if he did not send for plaintiff to come and take charge of the estate, and answered, under objection, that he did, the communication being made by letter; which testimony is held irrelevant, it being of no consequence how he came to take charge of the estate, but, if material, the letter was the only competent evidence of the fact.</p> <p>4. An editorial in a newspaper published in another state, referring to the subject-matter of" an article for the publication of which a libel suit is brought, but which is not shown to have been based upon such publication, is inadmissible as evidence in said suit, and if admitted the error is not cured by striking it out of the case.</p> <p>5. Appellate courts must presume that one occupying so important a position as that of circuit judge can influence a jury; and whenever he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of the other, or uses language which tends to bring an attorney into contempt before the jury, or uses any language which tends to prejirdice them, he commits ah error of law for which the verdict and judgment must be promptly set aside.</p> <p>6. It is never proper practice, when an objection to a question has been sustained, for counsel to state in the presence of the jury what he can or proposes to prove if allowed to do so.</p> <p>So held, where a_ witness was asked on cross-examination if he had not taken a lewd woman into his house, and the answer was excluded, whereupon the counsel asking the question stated that if the objection was withdrawn he could prove the fact by the sister of the witness, and the court refused to instruct the jury that the remarks were improper, and that they should pay no attention to them, which statement and refusal are held to be reversible error.</p>

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

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

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

(Hosmer, J.) Bill to enjoin defendant from using certain premises for slaughter-house purposes. Complainants and defendant appeal. The facts are stated in the opinion.

<p>Partnership — Bills and notes — Good-faith holder — Evidence.</p> <p>One partner gave the firm note payable to his order, and transferred it after maturity and a few days prior to the dissolution of the firm. The transferee paid to the other partner soon after the alleged purchase sums of money largely in excess of the amount due on the note, and two and a half years after-wards brought suit on the note, claiming to be a bona fide purchaser. On the trial the partner who made the note testified that it was given for money loaned the firm with the consent of his co-partner, who denied its execution, and defended on the theory that no such loan was made, but that the note was a fraud upon him, and that the plaintiff was not a bona fide holder as against such partner, but that he had conspired with the other partner to procure the execution of the note to protect himself against indorsements he had made for him. And it is held that it was competent to inquire of the plaintiff on his cross-examination, as bearing upon the question of whether he in fact held the note at the time of making such payments, as he claimed to have done, and upon the further question of whether it was a bona fide note, and believed by him to be such, whether he had ever asked the partner making such defense for the money sued for.</p>

(Burch, J.) Bill to remove an obstruction from a public street, etc. Defendants appeal. The facts are stated in the opinion.

<p>Certiorari to review proceedings of respondent granting an order for an allowance for the maintenance of the widow and infant children of Townsend North, deceased.</p> <p>The facts are stated in the opinion.</p>

(Daboll, J.) Bill to enjoin defendants from engaging in a manufacturing business, etc. Complainant appeals from decree dismissing bill. The facts are stated in the opinion.

Appeal- from St. Joseph. (Loveridge, J.) Bill to dissolve partnership and for an accounting. Defendant appeals from a decree granting the relief prayed. The facts are stated in the opinion.

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

<p> Mandamus. </p> <p>Relator applied for mandamus to compel the allowance of certain fees earned and expenses incurred as county clerk under the tax law of 1889. The facts are stated in the opinion.</p>

(Beilly, J.) Petition for sale of lands delinquent for taxes, under Act No. 195, Laws of 1889. Board of Auditors of Wayne county appeal. The facts are stated in the opinion.

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

Mandamus. Belator applied for mandamus to compel respondent to apportion among tbe townships of the county the amount of an indebtedness claimed to be due the State from the county. The facts are stated in the opinion.

(Grove, 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.

Appeals from Saginaw. (Gage, J.) Bills to restrain defendants from executing or negotiating certain bonds of the city of Saginaw. Complainants appeal from decrees sustaining demurrers to tbeir bills. The facts are stated in the opinion.

(Grant, J.) Bill to declare the title to a portion of the Indian reserve at Sault Ste. Marie, patented to the defendant, to belong to complainant under a prior pre-emption under the pre-emption law of 1841. Complainant appeals from a decree dismissing his bill. The facts are stated in the opinion.

<p>Replevin — Res judicata — Trover and conversion — Damages—Error without prejudice.</p> <p>1. A father and mother included in a mortgage of their household goods a piano belonging to an infant daughter, and it was replevied from them by the mortgagee. On the day the writ was delivered to-the officer the daughter took out a writ of replevin for the piano from justice’s court, after which the officer removed it from her parents’ house, claiming to have levied his writ upon it on the day it was placed in his hands. Such proceedings were thereafter had as resulted in a judgment in favor of the father and mother, and also in favor of the daughter, but the piano remained in the possession of the mortgagee, to whom it had been delivered by the officer. After recovering said judgment the daughter sued the officer for the value of the piano, and for damages she had sustained by reason of its removal, in which suit the officer claimed that the judgment in the replevin suit was a bar to the second suit. And it is held that the removal of the piano after the commencement of the replevin suit was a new and independent taking, and that that suit had no connection with the second one that would make the judgment rendered therein a bar to the second suit.</p> <p>3. In such a case the daughter could only recover the value of the piano, with interest; but a judgment in her favor not exceeding the sum at which it was valued by the appraisers in the replevin suit against her parents, and for less than its value as testified to by her witnesses, is not reversed for the error of the court in instructing the jury as to the measure of dam-</p>

Mandamus. Relators applied for mandamus to compel respondent to advertise for proposals for certain park and boulevard bonds. The facts are stated in the opinion.

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

(Kinne, J.) Bill to restrain defendant bankvfrom collecting certain notes. Defendant bank appeals. The facts are stated in the opinion.

<p>Logs and logging — Contract—Overpayment.</p> <p>1. In the absence of a contract between a log-running company and a log-owner, fixing the terms and price of running his logs, the company is left, under the statute, to run such of the logs as obstruct the stream, and charge therefor a reasonable compensation.</p> <p>2. A log-running company is not entitled to charge for running any more logs than are delivered, unless it can show that those undelivered were lost without its fault, and the burden of proof is on the company to show such loss.</p> <p>8. A log-running company mailed to a log-owner a copy of the “rates and rules of service” adopted by the company in reference to running and delivering logs for the coming year, which provided that final settlement was to be made on the woods scale. The log-owner did not accept the terms and conditions of the company contained in the rules by signing the .same, as requested, nor did he comply with the requirement of the rules in other respects; but some time after receiving such copy he filled out and signed, and forwarded to the company, a blank statement it had sent to him, showing the amount of logs put into the river by him, with certain other information as to log-mark, etc. And it is held that there was no such meeting of the minds of the parties as would justify the court in holding that they agreed upon the woods scale as determining the amount which should be paid for running the logs, or the amount of logs which should be delivered by the company.</p> <p>4. Where, in such a case, the log-owner claimed a large shortage in the amount of logs delivered as between the woods and mill -scales, but, to secure their delivery, paid the running charges on the basis of the woods scale, under protest, and sued to recover back the overpayment, an instruction by the circuit judge that unless the jury were satisfied that the company, through its carelessness and negligence in running and delivering the logs, had failed to run and deliver to the plaintiff the amount mentioned in the woods scale, he would not be ■entitled to recover, but if, through such carelessness and negligence, the company had only run and delivered the quantity of logs shown by the mill scale, the plaintiff might recover, is as favorable as the company was entitled to. '</p>

(Grove, J.) Bill to compel the executor of an estate to pay over a portion of a legacy alleged to be due. Complainant appeals. The facts are stated in the opinion.

<p>Railroad companies — Common carriers — Exclusive privileges to hack and bus men.</p> <p>1. A railroad company cannot legally give to one hack and bus company the right to the use and occupancy of a portion of its depot grounds, to the exclusion of others engaged in the like business of the carriage of passengers and freight to and from its depot.</p> <p>2. The' following general propositions are summarized from the opinion of Mr. Justice Morse:</p> <p>a — How. Stat. § 3355, requiring all railroad companies to grant equal facilities for the transportation of passengers and freight to all persons, companies, or corporations, does not relate entirely to the mere carriage in the ears of the road, hut includes the receiving of such passengers and freight at its depots, and by other “persons, companies, or corporations” at the point upon its road where the carriage ends.</p> <p>b — A railroad company can make all needful reasonable rules and regulations concerning the use of its depot and grounds, and can exclude all persons therefrom who have no business with the railroad or passengers going to and coming from its trains or depots, and it probably can prohibit all persons from soliciting business for themselves upon its premises; but it cannot, arbitrarily, admit one common carrier of passengers or freight to its depots or grounds, and exclude all others, for no other reason than that it is for its own profit or pleasure to do so.</p>

(Smith, J.) Bill to set aside certain conveyances based upon the title attempted to be procured by a mortgagor through, an alleged fraudulent purchase of the mortgaged premises upon foreclosure, and to quiet complainants' title thereto. Complainants appeal. The facts are stated in the opinion.

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

<p> Quo warranto. </p> <p>Information in the nature of a quo warranto to test the right of respondents to act as policemen of the city of Adrian. The facts are stated in the opinion.</p>

Mandamus. Relator applied for mandamus to compel respondents to declare and certify his election as Representative to the State Legislature. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to proceed and approve of the kind and pattern of poles to be used by relator for the purpose of operating its road. The facts are stated in the opinion.

<p>Will — Life-estate—Trust.</p> <p>A testator gave the executors named in his will full power and' authority to sell and convey all of his estate, and directed them to invest the proceeds in certain specified securities. He then bequeathed to his wife, during her natural life, the use, income, and profit of all of his estate, and the interest arising from such investments, out of which she was to support his minor children until 16 years of age, or until able to support themselves; and after her death the remainder and residue-of his estate was devised to his children equally, to have and to hold forever. The executors resigned without executing the trust, and an administrator de bonis non was appointed, and the estate was closed as far as payment of debts and expenses, of administration were concerned, leaving about $4,000 in personal property in the administrator’s hands; and on his refusal to turn it over to the widow she filed a bill to construe the-will, and it is held:</p> <p>a — That the interest of the complainant is limited to the use-of the estate during her life, and after her death it vests in the children.</p> <p>b — Whether or not the testator intended to vest any estate-in the executors, or only to give them power of disposition, does not become material. The execution of the trust Jailed by their resignation before any portion of the estate was dis-posed of, or any distribution made of the estate, which is in ' the hands of the administrator, and upon proper application a. court of chancery would have.power to appoint the necessary trustee for its control and management, and provide for the payment of the income over to the widow.</p>

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

<p>Negligence — Master and servant — Felloiv-servants — Incompetent employé.</p> <p>1. Previous negligence on the part of a railroad engineer, if established, is not important unless he is also shown to have been negligent at the time of the injury for which suit is brought.</p> <p>In the absence of any evidence tending to show that a railroad engineer was negligent in allowing the fireman to operate the engine at the time the plaintiff was injured while attempting to couple cars, and which alleged negligence is the gist of plaintiff’s action, a verdict should be directed for the defendant.</p>

<p>Master and servant — Negligence — Fellow-servants — Incompetent employe — Notice—Assumption of dangers — Evidence—Matters equally ivithin knowledge of deceased officer of corporation.</p> <p>1. A yard-master who has full charge of the yards of a railroad company, and hires and discharges the men employed therein, and assigns them to their labor, is the agent or vice-principal of the company in this respect, as well as in furnishing proper, suitable, and safe appliances and places for their labor; and notice to him of defects in the appliances so furnished is notice to the company, which is chargeable with his negligence, and responsible for his promise to remedy such defects, and to see that an incompetent fireman shall not handle an engine while switching is being done, upon which promise the switch-man complaining of such defects and incompetency has a right to rely for a reasonable time, and to a reasonable extent. Mining Co. v. Kitts, 42 Mich. 34; Ryan v. Bagaley, 50 Id. 179; Rodman v. Railroad Co., 55 Id. 62, 59 Id. 395; Slater v. Chapman, 67 Id. 523; Luke v. Mining Co., 71 Id. 364; Van Dusen v. Letellier, 78 Id. 492; Harrison v. Railroad Co., 79 Id. 409; Brown v. Gilchrist, 80 Id. 56.</p> <p>2. The rule that a servant in entering a service accepts the ordinary hazards and dangers of his occupation, and that if, with knowledge of defects in the machinery and appliances furnished by the employer, or of the unusual dangers of the occupation, he continues in the employment, he will be regarded as assuming the dangers, and cannot recover for injuries arising therefrom, does not apply to a case where the employer (a railroad company) is notified by a switchman of the incompetency of a fireman who has been permitted to operate an engine in switching cars, and who refuses to work if the fireman is allowed to continue so to do, and who, in reliance upon the promise of the company that he shall not, continues his work, and is injured while the fireman is running the engine without his knowledge, the immediate cause of such injury being the negligence of the fireman.</p> <p>3. The charge of. the court, which is set forth iu the opinion, is held to embody the law of the case.</p> <p>4. How. Stat. § 7545, which excludes the testimony of a party to a suit which is prosecuted or defended by a corporation, in relation to matters which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within that of any surviving officer or agent, is held not to apply to the testimony of a plaintiff in a negligence case against a railroad company to an interview with the yardmaster, since deceased, in the presence of the master of the round-house, who survives him.</p>

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

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

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

<p>Error to Sanilac. (Beách, J.)</p> <p>Assimpsií. Plaintiffs bring error.</p> <p>Tbe facts are stated in the opinion.</p>

(Burlingame, J.) ■ Bill to restrain the collection of a special assessment for street improvement purposes. Complainants appeal from a decree dismissing their bill. The facts are stated in the opinion.

<p>Taxes — Records of board of supervisors — Omission of signature of chairman — Alteration of roll.</p> <p>1. The failure of the chairman of the board of supervisors to sign the record of the proceedings of the board in equalizing the assessments and apportioning the State tax is fatal to the validity of a tax deed based thereon.</p> <p>2. How. Stat. § 501, requiring that every order, resolution, and determination of a board of supervisors shall be recorded in the records of such board, and signed by the chairman and clerk of the board, includes all the proceedings required by law to be entered upon the records of the board. Pearsall v. Board of Supervisors, 71 Mich. 438.</p> <p>8. Public jiolicy will not permit any tampering with an assessment roll after it is equalized and completed and certified as required by law.</p> <p>. So held, where after the equalization of his assessment roll, and at the time of extending the taxes thereon, the supervisor added a number of descriptions of land to the roll, and increased the valuation of one description from $80 to $800, the addition amounting to about $3,500, which action is held fatal to the validity of the tax roll.</p>

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

<p>Adverse possession — Ejectment—Claim for improvements — Taxes— Validity of roll.</p> <p>1. The presumption that the continued occupancy of land by a grantor after its conveyance and the recording of the deed is for a temporary purpose, without claim of right, and merely as a tenant at sufferance of the grantee (Bloomer v. Henderson, 8 Mich. 405; Dawson v. Bank, 15 Id. 489; Humphrey v. Hurd, 29 Id. 44; Jeffery v. Hursh, 45 Id. 59), can only be overthrown by circumstances tending to show a clear renunciation of such tenancy, brought home to the grantee, and of a subsequent exclusive, adverse possession by the grantor under a claim of superior right.</p> <p>2. A supervisor authorized a neighbor to copy the roll of the-previous year so far as the real estate was concerned, making only such changes as were necessary by change of owners, and to attach and sign the statutory certificate; which action is held not to be in accordance with the law, which requires the exercise of the best judgment of the supervisor in assessing-property at its cash value.</p> <p>3. A supervisor’s certificate of assessment under How. Stat. § 1025,. in which the words “fixed or auction sale” are used instead of “forced or auction sale,” is fatally defective.</p> <p>4. The record of equalization set forth in the opinion is held to be too uncertain to have any value as a public record.</p> <p>5. Where a grantor remains in possession of the granted premises. in subordination to the rights of the grantee, and during such occupancy buys in an outstanding tax title, the recording of the tax deed is not, standing alone, such an assertion of an independent, hostile title as will entitle the grantor to recover for improvements made after securing such tax deed, but a claim of an adverse holding thereunder must have been expressly asserted and brought home to the grantee.</p>

<p>Fraud — Bohemian oat note — Pleading—Declaration.</p> <p>Plaintiff brought an action on the case to recover damages for the transfer of his note, given for Bohemian oats, to a bona fide purchaser without notice, whereby he was forced to pay the note. And it is held that the declaration, which is substantially set forth in the opinion, fails to state a cause of action.</p>

(Hosmer, J.) Bill to enforce the assignment of certain accounts. Defendants Emerson and Eldred .appeal. The facts are stated in the opinion.

Mandamus. Belator applied for mandamtis to compel respondent to deposit with it certain funds of the county, in accordance with a contract claimed to have been entered into by it in December, 1890, with the board of auditors and outgoing county treasurer, by which relator was to act as depository of such funds for a term of two years.

Mandamus. Relator applied for mandamus to compel respondent to vacate an order requiring plaintiff to file an amended bill of particulars. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel the respondent to return to the relator, as chairman of the board of auditors of Wayne county, the bqoks belonging to said board, and for other relief. The facts are stated in the opinion.

Quo warranto. Information in the nature of quo warranto to test title of respondent to the office of circuit judge for the county of Kent. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the Secretary of State to give notice of an election to fill vacancy in the office of judge of the seventeenth judicial circuit, and subsequently applied for such writ to compel the Board of State Canvassers to meet and examine a certain tabulated statement of votes cast for such office, and determine who is elected thereto. The facts are stated in the opinions.

Mandamus. Relator applied for mandamus to compel respondent to vacate an order quashing an information for criminal libel. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel payment of costs in proceedings relating to widening of boulevard. The facts are stated in the opinion.

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

<p>Municipal corporations — Defective sidewalk — Evidence.</p> <p>1. After the statute creating a liability on the part of cities for injuries sustained by reason of defective sidewalks took effect, it became the duty of such municipal corporations, if they continued to maintain sidewalks which were out of repair when such liability attached, to put them in good repair, and to keep them in a condition reasonably safe for public travel; and in a suit to recover damages for an alleged failure so to do, the length of time the sidewalk had been out of repair prior to the injury is a legitimate subject of inquiry, without reference to the date when the statute became operative. .</p> <p>2. The plaintiff in a negligence case claimed to have been injured by getting her foot into a hole in a sidewalk at a point about midway between two gates leading into certain premises. The evidence as to defects was confined to that point, but the testimony developed that there was more than one hole, and some of the witnesses, not knowing in which hole the plaintiff’s foot was caught, were interrogated on both sides as to the location of the holes they observed; but the jury were instructed that the plaintiff could not recover unless the city had knowledge, actual or constructive, of the identical hole into which the plaintiff stepped, and the existence of the other holes was not permitted to be used to show notice of this particular defect. And it is held that there was therefore no error in the admission of the testimony concerning the other holes.</p> <p>3. In a negligence case against a city for injuries sustained by reason of a defect in a sidewalk, the court, at the request of the defendant’s counsel, instructed the jury that if they found that the street commissioner went over the walk within two weeks previous to the accident, and looked out for defects in a careful manner, and did not see the defect complained of, and had no actual knowledge of its existence, he used such care and diligence as was required of him, and that the defendant was not liable. The court added an instruction that, in determining the first three questions, the jury migfct consider all of the testimony in the case as to the existence of the defect previous to the time the commissioner went over the walk, and that, if they found that it was there when such examination was made, they could consider that fact in determining whether the commissioner used due care. And it is held that the added instruction was good law, and very properly given under the circumstances, there being testimony in the ca'se that the defect had been there for months.</p>

<p>Illegal service of process — Action—Malicious prosecution,</p> <p>A judgment in justice’s court, .based U230n the service of a summons by a private person, who was not 2)roperly designated for that purpose under the statute, was affirmed on special appeal in the circuit court, and reversed in the Supreme Court, with costs to the defendant. And it is held that all of the damages suffered by the defendant were the result of the decisions of the courts in holding that the summons was legally served, and for which he had received the full benefit of the only remedy afforded by law, viz., a judgment for costs.</p>

<p>Appeal from Shiawassee. (Newton, J.)</p> <p>Bill to set aside a deed and mortgage. Defendant Ladu appeals.</p> <p>The facts are stated in the opinion.</p>

(Gage, J.) Appeal from order of probate court granting the petition of an administrator for the sale of certain devised lands to pay a legacy. The facts are stated in the opinion.

<p>Sale — Retention of title — Fraudulent representations — Evidence— Assignments of error.</p> <p>1. A contract by which the title to goods is to remain in' the owner until they are paid for, or sold in the due course of trade, by the person to whom they are delivered, is valid, and such purchasers take a good title, and those who do not purchase in the due course of trade cannot rely upon the bare possession of their vendor as conclusive evidence of title.</p> <p>2. Evidence in a replevin suit for goods the title to which the plaintiff claims to have retained until paid for, or sold in due course of trade, of alleged false representations as to the financial standing of the person to whom the goods were delivered, but which the plaintiff testifies he did not rely upon in making such delivery, is immaterial, and should be stricken out on motion of defendant’s attorneys.</p> <p>3. An assignment of error that the judge erred in giving that portion of his charge commencing, “I-give you these requests on the part of the plaintiffs,” and ending with, “ I give you these ■ requests on the part of the defendant,” is too general, where twelve requests are involved, the most of which were correct propositions of law.</p>

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

(Hooker, J.) Bill to set aside a statutory foreclosure of a mortgage, and to procure a discharge of the lien. Complainant appeals. The facts are stated in the opinion.

(Burlingame, J.) Bill to restrain the collection of an assessment to pay damages awarded on account of the regrading of a street. Complainants appeal from a decree dismissing their bill. The facts are stated in the opinion.

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

<p>Attorney and client — Judgment—Payment—Estoppel—Lien for services.</p> <p>1. The receipt by a plaintiff of the money due upon a judgment rendered in his favor, and its discharge by indorsing a satisfaction thereof upon an execution issued for its collection, estop him from denying the authority of the attorneys to act for him in its procurement, and, if their original employment is not shown, such acts are a full and complete ratification of their acts and services in obtaining the judgment.</p> <p>2. The lien of an attorney at law attaches to the money payable to his client upon a judgment if it is the proceeds of the attorney’s labor and skill, and to moneys received by the client by way of a compromise of such judgment, who, if he settles the case after judgment, so as to deprive the attorney of his costs and fees, is liable to him in the proper action. 1 Amer. & Eng. Enc. Law, 970, 971; Weeks v. Circuit Judges, 73 Mich. 256; Kinney v. Tabor, 62 Id. 517; Potter v. Hunt, 68 Id. 242.</p> <p>3. Requests to charge appearing in the printed record, but not in the bill of exceptions, which does not show that any exceptions were taken to the refusal of the court to give them, nor that the attention of the court was called to such requests, cannot be considered.</p>

<p>Assault — Evidence—Provocation—Mitigation of damages.</p> <p>1. A defendant cannot give in evidence in mitigation of damages for an assault the acts and declarations of the plaintiff at a different time, or any antecedent facts which are not fairly to be considered as part of one and the same transaction.</p> <p>2. To entitle the defendant in an action for assault and battery to give evidence of provocation in mitigation of damages, the provocation must be so recent and immediate as to induce a presumption that the violence was committed under the immediate influence of the feelings and passions excited by it. Coxe v. Whitney, 9 Mo. 531; Lee v. Woolsey, 19 Johns. 319.</p>

<p> Mandamus. </p> <p>Relators applied for mandamus to compel respondent to permit an amendment substituting certain of them as plaintiffs in the place of their eo-relator, Wood, in a suit brought to recover life insurance to which they were entitled as heirs of the'ir father. The facts are stated in the opinion.</p>

<p>Insurance — Misrepresentations of agent — Rescission by assured— Premium note.</p> <p>A railroad switchman applied for insurance to an agent of a life insurance company whose powers were in no way restricted by the printed application', which the agent filled out, and a copy of which was delivered to the applicant with his policy. The applicant correctly stated to the agent his occupation, which rendered him uninsurable under the conditions of the policy, and the agent, in filling up the application, misstated such occupation, so as to avoid such conditions. And it is held that the assured, on discovering the fraud, had the right to rescind the contract of insurance, and show the facts as a defense in a suit by the company upon a note given for the premium.</p>

<p>Sale — Warranty—Option to return goods.</p> <p>1, There is a wide difference between an option given to the buyer to return the goods if not satisfactory and a warranty of quality. The latter is continuing, and runs with the goods; but the former must be exercised within a reasonable time after the receipt of the goods, and their retention after the expiration of such reasonable time must be regarded as an acceptance, unless the option is extended in clear and unmistakable language.</p> <p>2. An option given to a purchaser to return goods if not satisfactory on trial does not extend to subsequent orders and invoices of goods, unless repeated -with each order, or unless general language was used covering all orders or sales.</p>

<p>Death by wrongful act — Pleading—Damages—Pecuniary injury.</p> <p>1. How. Stat. § 8314, which permits the personal representatives of a deceased person whose death was caused by the wrongful act, neglect, or default of another to bring an action for the damages thereby sustained, clearly contemplates that pecuniary injury must result from such act, neglect, or default, which must be alleged in the declaration and shown by the evidence.</p> <p>2. In a suit by the administrator of the estate of a deceased infant whose parents are entitled to the damages recoverable under How. Stat. § 8314, for his negligent killing, the measure of such damages, if any are recoverable in such cases, is limited to his prospective earnings until of full age, which damages ■ are special in their character, and must be specially pleaded, and established by the evidence.</p> <p>3. The right of action given by How. Stat. § 8314, to the personal representatives of a deceased person for the pecuniary injury resulting from his negligent killing, and that which survives under Act No. 113, Laws of 1885 (3 How. Stat. § 7397), for negligent injuries to the person, are separate and distinct causes of action, and the latter cannot be introduced into a cause based upon the right given under the first statute cited, by way of amendment to the declaration.</p>

<p>Bills and notes — Good-faith holdei — Collateral security — Evidence-Deposition.</p> <p>1. A banking firm received from a customer the promissory note of a third person, not yet due, as collateral security for a loan made to the customer, which was not Evidenced by any writing. Nine days afterwards, and after the note was due, the customer gave the bankers his note for the amount of the loan, drawing interest at ten per cent., and the bankers continued to hold the first note as collateral to the second note, but without the consent of the maker, which latter holding is held to be subject to any defenses which existed between the maker of . the note and the customer.</p> <p>2. A stipulation for taking the deposition of a witness in another state provided that it should be taken on the direct and cross interrogatories annexed to the stipulation before a designated' county judge, on the corporal oath of the witness, to be first administered by the commissioner. The deposition was to be annexed to the interrogatories and stipulation, and returned by • mail to the clerk of the court where the suit was pending. The papers were received by the clerk inclosed in a sealed envelope, but not so attached together.. The affidavit of the witness was attached, in which he swore that his answers to the interrogatories propounded to him by the county judge were true and correct; and the judge certified that the witness was duly sworn before the questions were asked, and was sworn to the answers after they were given. And it is held that, the deposition having been taken under stipulation, the Court are not inclined to reject it because of the failure of the commissioner to attach the papers together; and that the return shows that the witness was sworn both before and after giving his testimony.</p>

<p>Error to Wayne. (Brevoort, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in tbe opinion.</p>

Mandamus. Relator applied for mandamus to compel respondent to revoke an order dismissing him from the police force, and to reinstate him as such member. The facts are stated in the opinion.

Mandamus. Kelators applied for mandamus to compel respondent to set' aside a verdict in condemnation proceedings. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to ' vacate an order adjudging him guilty of contempt. The facts are stated in the opinion.

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill for partition. Complainant appeals from decree dismissing bill.</p>

<p>Error to Berrien. (0Víara, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Assault and battery — Evidence—Impeachment—Self-defense.</p> <p>1. Where a plaintiff in a civil suit for assault and battery admits on cross-examination that he used abusive, insulting, and profane language towards the defendant prior to the assault, he may give the language used on his redirect examination.</p> <p>"2. A defendant in a trespass suit for assault and battery may be asked, for the purpose of impeachment, if he has not stated, at a given time and place, to a designated person, that he meant to have killed the plaintiff, and if he had it to do over again he would kill him.</p> <p>3. A defendant in a civil suit for assault and battery who claims to have acted in self-defense must satisfy the jury that he acted honestly in using force to repel the attack of the plaintiff, and in determining that question they are to consider the reasonableness of the means made use of.1</p>

<p>Error to Muskegon. (Diekerman, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>Tbe facts are stated in the opinion.</p>

(Lane; J.) Bill to restrain defendants from closing up or in any manner obstructing an alleged' highway. Defendants appeal. The facts are stated in the opinion.

(Loveridge, J., presiding.) Bill to foreclose a mortgage. Defendants Kinney appeal. Bill dismissed as to defendant Lucinda ' M. Kinney, with costs, and decree affirmed as to defendant Amos A. Kinney, but no writ of assistance to be awarded to put him out of possession of the mortgaged premises, which he claims by a paramount title. The facts are stated in the opinion.

<p>Appeal from Tuscola. (Beach, J.)</p> <p>Bill to foreclose a mortgage. Defendant Wallace appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Chattel mortgage — After-acquired property — Stoppage in transit.</p> <p>1. The lien of a chattel mortgage covering all additions to and substitutes for the property described in the mortgage will not attach to goods ordered by the mortgagor before giving the mortgage, and which never actually came into his possession as owner.</p> <p>3. At the time of the delivery of goods shipped to a merchant on his written order his store and stock were in the possession of an agent who represented several mortgagees, whose mortgages were given after the goods were ordered, and under one of which a sale was made at about the date of such delivery, and the goods bid in by one of the mortgagees, who remained in possession, and from whom, and the merchant, who was acting as agent for the mortgagee, a portion of the goods ordered were replevied by the vendor, who claimed the right to stop them in transit. And it is held that if the merchant was insolvent when he made the order, or became so at any time before the claimed delivery of the goods, and if they were never actually delivered to his possession, the vendor’s rights were paramount to any acquired at the mortgage sale, which question of actual delivery was for the jury.</p>

<p>Fraud — Question for jury — Costs.</p> <p>1. Where the record is printed solid, and in such small type as to mate its reading exceedingly difficult, the appellant will not.be allowed costs.</p> <p>2. In this case the judgment is reversed for the error of the court. in deciding that plaintiff had been defrauded, which was a question for the jury.</p>

<p>Error to Alpena. (Kelley, J.)</p> <p>Negligence case. Defendants bring error.</p> <p>The facts are stated in the opinion, and in 78 Mich. 687.</p>

(Grove, J.) Bill to set aside a .deed and the assignment of an insurance policy as fraudulent as to creditors. Complainants appeal from a decree setting aside the deed, but sustaining the assignment. The facts are stated in the opinion.

<p>Sale — Warranty—Rescission — Fixtures — Conversion — Waiver of tort — Assumpsit.</p> <p>1. It is now well settled in this State that whether an article attached to the freehold becomes a fixture depends largely upon the intention of the parties. Crippen v. Morrison, 13 Mich. 23; Robertson v. Corsett, 39 Id. 777; Wheeler v. Bedell, 40 Id. 693; Ferris v. Quimby, 41 Id. 202; Manwaring v. Jenison, 61 Id. 117; Stevens v. Rose, 69 Id. 259.</p> <p>2. In a suit to recove^ for a bill of goods sold to the defendant, he resisted payment for a portion of the goods on the ground that they were purchased under a specific warranty, which they failed to fill, and claimed damages by way of recoupment. Plaintiff conceded that the remainder of the goods had been paid for, or a tender made of the balance due therefor, and that if the goods were sold under a warranty, as claimed ■by the defendant,, he was entitled to a judgment of no cause •of action. The case was tried upon this issue, the court holding that the defendant’s tender precluded him from recovering any judgment under his notice of recoupment;, and defendant recovered a1 judgment of no cause of action. .And it is held ■ that the suit was not a bar to an action by the plaintiff to recover the value of the goods covered by the warranty on the refusal of the defendant to surrender possession of the same.</p> <p>3. On the refusal of a purchaser, who has rescinded a contract for the sale of personal property, to deliver the property to- the vendor, he may waive the tort and sue in assumpsit for its value (Tuttle v. Campbell, 74 Mich. 652); which action can be maintained on the common counts (McLaughlin v. Salley, 46 Id. 219), even though the declaration does not set forth such waiver (McDonald v. McDonald, 67 Id. 122).</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>Fire insurance — Application—Mistalce in representations — Knowledge of agent — Proofs of loss — Practice in circuit court— Taking documents to jury-room — Judgment—Error without prejudice.</p> <p>1. Where an agent whose authority is confined to soliciting applications for insurance, which provide that the company shall not be bound by any act done or statement made by or to any agent or other person not contained in the application, is correctly informed of the amount unpaid on a land contract under which the applicant holds, and by mistalce or otherwise inserts a less sum in the application, which he fills out, and the applicant without carelessness on his part, and in reliance upon the acts and conduct of the agent in preparing the application, signs it without reading it or having it read to him, and. without notice or knowledge of such misrepresentation, which application is not attached to the policy, the company cannot avoid liability under a provision of the policy that by its acceptance the assured covenants that the application shall form a part of the policy, and a warranty by the assured. Crouse v. Insurance Co., 79 Mich. 249.1</p> <p>2. Failure to make proofs of loss within 30 days, as provided for in an insurance policy, will only operate to postpone the right of action of the assured until the proofs are supplied, where there is no limitation in the policy as to the time within which suit must be brought, nor provision for forfeiture in case proofs are not made within the 30 days.</p> <p>3. Including articles not owned by the assured in his proofs of loss on the supposition that they are covered by the policy, and without fraudulent intent on his part, will not invalidate the policy.</p> <p>4. Where exhibits have been fully proven and admitted in evidence, and their authenticity is unquestioned, and there is no testimony to impeach their contents, it is within the discretion of the trial court to allow them to be taken to the jury-room, although objection is made.</p> <p>5. Where the conceded loss under a clause of an insurance policy exceeds the sum insured thereunder to an amount greater than, the value of certain articles which the court instructs the jury-plaintiff can recover for under said claim, the error, if one is. committed, is not prejudicial to the defendant.</p> <p>6. Where in an insurance case the jury disregarded the instruction-of the court limiting the loss recoverable under a certain clause of the policy to a sum less than that covered by the clause, and the jury rendered a verdict for the greater amount, and no application was made to the trial court to correct the error, the judgment will not be reversed, but will be corrected by • making the necessary deduction.</p> <p>[The points of counsel are so fully stated in the opinion, and the authorities so fully discussed in this case, and in the cases cited by the Court and in the foot-note, that a summary of the briefs of counsel is omitted. — Beporter. ]</p>

(Gartner, J.) Negligence case. Defendant brings ' error. The facts necessary to a decision of the case are stated in the opinion.

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

(Burlingame, J.) Bill to restrain the sale of land for a tax assessed for the construction of a sewer. Complainants appeal from decree dismissing bill. The facts are stated in the opinion.

<p>Appeal from St. Clair. (Canfield, J.)</p> <p>Bill for construction of will. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Master and servant — Negligence—Evidence—Instructions to jury— Certiorari.</p> <p><1. It is the province of the jury to determine which theory of opposing expert witnesses is the true one.</p> <p>2. Evidence that defendant’s superintendent notified other employes, than the plaintiff, but not in his presence, of the dangerous character of the common employment, is inadmissible to rebut the testimony of plaintiff that he was not so informed, and of another employé that he was told by the superintendent not to give such information to the .employés.</p> <p>3. Testimony in behalf of the plaintiff in a negligence case that., after he had sustained the injury complained of, all employés were required to and did sign a contract waiving all claim for damages on account of injuries received from the same source, and that danger signals were put up in the shop where they wére employed, is properly rejected.</p> <p>4. The contents of medical books are not competent evidence. Marshall v. Brown, 50 Mich. 148; People v. Millard, 53 Id. 63, 77; People v. Vanderhoof, 71 Id. 158, 179.</p> <p>5. It it not the duty of an employer to inform an employé of the particular ingredients used in the manufacture of Paris green, if he is notified of their poisonous character, and of the precautions to be used against the dangers incident to working at the vats.</p> <p>6. It is error for the circuit judge to enter the jury-room and give instructions to the jury without the presence of counsel or the court stenographer, which facts are properly brought before this Court by writ of certiorari in aid of and in connection with the writ of error.1</p>