Volume 89 — Michigan Reports

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

Mandamus. Relators applied for mandamus to compel the respondent to set aside an order certifying the verdict roll in a street-opening case to the common council, and to settle the case for hearing upon the merits in the Supreme Court.. The facts are stated in the opinion.

<p>Liquor traffic — Action on bond — Pleading—Statutes—Repeal—Liability of sureties.</p> <p>1. Objections to a declaration in a suit on a liquor bond to collect a judgment recovered against the principal that it fails to allege the approval of the bond, or that the cause of action on which the judgment was rendered accrued within the life-time of the bond, are technical, and should be raised by demurrer; citing Jennison v. Havre, 39 Mich. 310; Wright v. Treat, 83 Id. 113.</p> <p>3. A liquor bond executed prior to the passage of the liquor law of 1887, and covering a period of one year from May 1, 1887, must be held good in so far as it embraces provisions in the new law which were taken from the former act.</p> <p>3. The fact that the law of 1887 differs from the prior law in requiring that the sureties must be male persons and not office-holders, and must not be sureties upon more than two-bonds, and must justify in real estate in the proper county, does not affect the liability upon bonds given under the former law, nor the conditions thereof.</p>

<p>Contribution — Expenses of suit — Rescission of contract — Liability of agent■ exceeding authority.</p> <p>1. In a suit for contribution by one tax-payer against others on. account of expenses incurred in prosecuting a suit in behalf of all to enjoin the issuance of water-works bonds, the evidence tended strongly to show an understanding between the-parties that they should pay said expenses according to their assessments, which is held to be an equitable arrangement, and, as the defendants made no objection on that ground when presented with bills upon that basis, the Court decline-to disturb a decree based thereon.</p> <p>2. Such a bill will be dismissed as to a defendant who, before any expense was incurred, notified the complainant that he withdrew his name from the contribution agreement, and would have nothing more to do with it, such contracts being revocable until acted upon.</p> <p>3. A defendant who signed the name of a corporation to said agreement, of which he was a director, vice-president, and general foreman, without informing complainant of his want' ' of authority so to do, and thereby gave the other parties to-the agreement to understand that the corporation was interested, will be held liable to contribute the share otherwise: chargeable to the corporation.</p>

(Daboll, J.) Bill for a receiver. The Fifth National Bank of Grand 'Bapids appeals from an order apportioning dividends .among secured creditors. The facts are stated In the opinion.

<p>Foreign corporations — Jurisdiction— Costs,</p> <p>1. A plaintiff who recovers a judgment for less than $100 against a foreign corporation in the circuit court is entitled to costs, no statutory method being provided for the service of a justice’s summons upon such a corporation, and the jurisdiction of the circuit court being therefore exclusive.</p> <p>2. How. Stat. § 6862, which provides that the first process against a corporation shall be a summons, which may be served by leaving a copy with its president, cashier, or secretary, or other principal officer, or at its banking-house or office, applies solely to domestic corporations.</p> <p>3. How. Stat. § 8187, as amended by Act No, 242, Laws of 1887,. which provides for the commencement of suits against corpo- ■ rations by summons or declaration, and for service of such process on the presiding officer, cashier, secretary, or treasui’er, or any other officer or agent, of such corporation, or by leaving it at its banking house or office, is not designed to reach foreign corporations; citing Watson v. Circuit Judge, 24 Mich. 38.</p> <p>4. How. Stat. §§ 8145, 8146, authorizing and regulating suits against. foreign corporations, do not apply to justices’ courts.</p>

<p>Settlement — Fraud—Consideration.</p> <p>This ease involves the question of fraud in obtaining an assignment of a mortgage in settlement of a capias suit commenced by the mortgagor to recover damages for false representations made to him by the mortgagee’s (defendant’s) agent on an exchange of lands by the parties. And it is held that the testimony shows that the captas suit was instituted in good faith, and that the defendant has not established his claim of fraud in its settlement by a preponderance of proof, while complainant has produced testimony which, if believed, substantiates the claim as to the false representations complained of, and that the settlement of such disputed claim was a good consideration for the assignment of the mortgage.</p>

<p>■ Justices of the peace — Failure of defendant to appear — Jurisdiction.</p> <p>.1. It is not a valid objection to a justice’s docket, when offered as evidence of a judgment rendered against a defendant who did not appear, that it fails to show that the justice waited one hour after the return hour for the defendant to appear.</p> <p>'3. A justice of the peace who has acquired jurisdiction over the person of a defendant by service of process does not lose it by failing to wait one hour after the return hour for him to appear before rendering judgment against him, but the irregularity should be corrected by special appeal or certiorari in the same suit; citing Smith v. Broum, 34 Mich. 455; Chair Co. v. Runnels, 77 Id. 104.</p>

<p>Landlord and tenant — Ouster—Action for damages — Estoppel.</p> <p>A lessor who conveys the leased premises, which are held under an unrecorded lease, and are not at the time in fhe actual occupation of the tenant, by warranty deed to an innocent purchaser, and thereupon notifies the tenant that his lease is at an end on account of such sale, and that he must not again enter upon the premises, in which latter warning the grantee joins, and after the tenant has made such re-entry warns him to leave, and not to return, under a threat of prosecution, is estopped in a suit by the tenant to recover damages for such ouster from relying upon the absence of a technical ouster by paramount title.</p>

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

Quo warranto. Information in the nature of a quo warranto to test the right of respondent to hold the office of auditor of Wayne county. The facts are stated in the opinion.

(Beach, J.) Petition to set aside a decree made under the tax law of 1889. Petitioner appeals. The facts are stated in the opinion.

Exceptions before judgment from recorder’s court of Detroit. (Chambers, J.) Eespondent was convicted of burglary. The facts are stated im the opinion.

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

<p>Waters and water-courses — Establishment of dock-lines — Riparian rights — Navigable waters.</p> <p>1. The establishment by the board of public works of the city of Grand Rapids of dock and building lines on the shores and margin of that portion of Grand river lying within the corporate -limits of said city, pursuant to' the provisions of Act No. '393, Local Acts of 1885, amendatory of its charter, without notice to the riparian owners and giving them an opportunity to be heard, cannot be sustained.</p> <p>3. Whatever may be the power of the Legislature in waters strictly navigable to fix an arbitrary line beyond which riparian owners cannot go, or to delegate such power to a municipality, no such right exists in that portion of the waters of a river which are not at the time na-vigable for any purpose.</p> <p>3. There is a manifest difference between public streams that can be used successfully for the running of boats and vessels for the purpose of commerce, and those which are only capable of being used for the floatage of lumber and logs in rafts or single pieces. The riparian owners are entitled to the beneficial and sole use of the latter streams, except for such floatage; and when such streams have become unfitted for valuable public use, and have actually ceased to be used for public highways, there is no more reason for holding them to be pub-, lie than in the case of a land highway which has been abandoned and is useless; citing Sterling v. Jackson, 69 Mich. 510, per Campbell, J.; Booming Co. v. Jarvis, 30 Id. 308; Middleton v. Booming Co., 37 Id. 533.</p> <p>4. The Legislature has no power to authorize a municipality .to make that a purpresture or nuisance which is not so in fact, if, by so doing, the constitutional rights of any citizen in his person or property are infringed or destroyed; citing ipreford •m People, 14 Mich. 41; Everett v. Marquette, 53 Id. 450; In re Frazee, 63 Id. 396; Robison v. Miner, 68 Id. 556; People v. Armstrong, 73 Id. 388.</p> <p>5. The owner in fee of land adjoining the “ Rapids,” so called, in Grand river, which are not navigable for any purpose, may construct anything he, pleases between his shore-line and the thread of the stream, unless it injures some other riparian proprietor, or those having the superior right to the use of the water for hydraulic purposes. Subject to these restrictions, he has the right to use his land under water the same as that above water, it being his private property under the protection of the Constitution, and it cannot be taken, or its value lessened or impaired, even for public use, without compensation or without due process of law, and it cannot be taken at all for any one’s private use; citing City of Janesville v. Carpenter, 77 Wis. 288.</p> <p>8, The right of the Legislature to empower the city of Grand Rapids to establish dock-lines within the limits of the navigable part of Grand river lying within its corporate limits, if there be such navigable water, and to prevent any encroachments upon or obstructions within the water so outlined as navigable, is not passed upon in this case; nor is it decided that the city may not make and enforce all needful and reasonable rules and regulations as to the public and private use of the river necessary to the public health, or to prohibit any encroachment upon the river bed. which will tend seriously to increase the danger of floods and the consequent destruction of property.</p>

<p>Criminal law — Evidence—Depositions—Inf ormation — Variance.</p> <p>A respondent who has caused the depositions of convicts in the State prison to be taken, and whose attorney reads them to the jury, is not in a position to complain of their introduction in evidence.</p>

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

<p>Error to recorder’s court of‘Detroit. (Chambers, J.)</p> <p>Information for burglary.</p> <p>The facts are stated in the opinion.</p>

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

Mandamus, Relator applied for mandamus to compel respondent to file an information in the nature of a quo warranto to determine the right to hold the office of sheriff of Kent county. The facts are stated in the opinion.

Mandamus. Relators severally applied for a mandamus to compel the board of auditors of Wayne county to set aside an order removing relators from their respective places, and to restore them thereto, etc. The facts are stated in the opinion.

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

<p>Negligence — Master and servant — Trespasser.</p> <p>A verdict íb held to have been properly directed in favor of the defendant, there being no evidence in the pase showing that any officer of the defendant ever saw the decedent walking between its tracks to and from his home, or had actual notice of such fact, or that there was any beaten track or traveled way along the side of or between said tracks, or that any other of defendant’s employés used this route as a way to reach their homes, and it appearing that there were three other ways by which decedent could have reached his home, which ways he had often used; this case being distinguishable in this respect from Bouwmeester v. Railroad Co., 63 Mich. 557.</p>

(Stone, J.) Bill to quiet title to the marble and serpentine contained in certain lands. Defendant appeals. The facts are stated in the opinion.

<p>Partnership — Acceptance—Estoppel—Pleading.</p> <p>1. In a suit upon an acceptance of a bill of exchange on condition that the amount is found due the drawer on final settlement, the plaintiff must make proof of such settlement, and of the amount found due thereon, in order to recover.</p> <p>2. An estoppel constitutes a distinct cause of action, and cannot be taken advantage of, either as a ground of recovery or as a defense, unless specially pleaded.</p> <p>8. The object of a declaration is to give the defendant fair notice of the case he is called into court to meet; and a count charging a defendant with the acceptance of a bill of exchange cannot be held to inform him that he will be called upon to meet a liability on the ground of estoppel; citing Cieotte v. Qagnier, 2 Mich. 881; Moran v. Palmer, 18 Id. 867; Conner-ton v. Millar, 41 Id. 608.</p> <p>4. It is the well-settled rule in regard to estoppels in pais that the conduct complained of must have induced another to act to his disadvantage, and that his situation in consequence thereof has changed; citing Maxwell v. Bridge Co., 46 Mich.- 282.</p> <p>5. In a suit against a partnership upon an acceptance by one partner in his own name of a bill of exchange drawn on the firm, it is incumbent on the plaintiff to prove that the partner who signed his name did so for the firm, and that he was the lawful agent of his copartner for that purpose.</p>

(Stone, J.) Debt. Plaintiff, defendants Eisher, Crane, and Cole, and defendant Nester bring error. The facts are-stated in the opinion, and in the opinions in the cases therein referred to.

<p>Covenant — Voluntary payment of illegal tax.</p> <p>Where a grantee voluntarily pays a tax, which was a lien upon the land at the time he received his deed, before any adjudication as to its validity, and without having been disturbed in his possession or demanding its payment by his grantor, and brings a suit upon the covenant against incumbrances, the grantor rñay show, as a complete defense, the invalidity of the tax.</p>

<p>Bridges — Liability for cost of construction — Board of supervisors.</p> <p>1. Act No. 62, Laws of 1889 (3 How. Stat. § 1310 a et seq.), which authorizes the board of supervisors of a county to order the construction of a bridge, and fix the respective portions which ' each township in which it is situated shall contribute towards its construction, etc., only applies to townships in which a portion of the bridge when built is actually located,</p> <p>2. Without discussing the act at length, it is suggested that many imperfections could be pointed out which would render it practically incapable of enforcement.</p>

Mandamus. Eelators applied for mandamus to compel respondent to vacate an order made by him setting aside the award of a jury in condemnation proceedings and granting a new trial, and for an order directing the confirmation of the verdict of the jury. The facts are stated in the opinion.

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

('Williams J.) Information in the nature of a quo warranto to test the title of respondents to the office of trustees of a religious society. Relators bring error. The facts are stated in 80 Mich. 484.

<p>Partnership — Accounting—Tenancy in common — Rental value of property — Compensation for services.</p> <p>1. "Where one tenant in common enters into possession of the joint property for all of the owners under ah express agreement that it is to he used for the benefit of all, and in violation of such agreement converts such possession and use' to his sole benefit, he will be held liable to account to his co-tenants for the value of such possession and use.</p> <p>2. In the absence of an agreement, a partner is not entitled to compensation for his services; citing Major v. Todd, 84 Mich. 85, and cases cited.</p>

Mandamus. Kelator applied for mandamus to compel respondent to meet with him for the purpose of determining the necessity fot the construction of a bridge on a county-line highway. The facts are stated in the opinion.

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

<p>Master and servant — Negligence.</p> <p>1. The rule that the mere fact of an accident is not sufficient to impose a liability for negligence is founded in reason and common sense, and there is nothing in the circumstances of this case to take it out of this rule, and show negligence on the part of the defendant; citing Railroad Co. v. Judson, 34 Mich. 506; Mining Co. v. Kitts, 42 Id. 34; Railroad Co. v. Kirkwood, 45 Id. 51; Brown v. Street Railway Co., 49 Id. 153; Mitchell v. Railway Co., 51 Id. 236; Stern v. Railroad Co., 76 Id. 591.</p> <p>2. An employe assumes the risk when he voluntarily enters into danger apparent to him, notwithstanding an agent of his employer tells him there is no danger.</p>

<p>Master and servant — Negligence—Assumption of risk — Jury,</p> <p>1. It is good ground of challenge for cause that the name of a juror chosen from the regular panel does not appear upon the assessment roll of his township or ward, as required by How. Stat. §§ 7554, 7555.</p> <p>2. The following propositions' are summarized from'the opinion of Mr. Justice McGrath, in which Morse and Long, JJ., concur:</p> <p>a — It is well settled that the master is bound to provide his servant with a safe place in which to work; citing Van Nusen v. Letellier, 78 Mich. 492. In other words, he must exercise care in the protection of his employés from the hazards of their employment, and the more hazardous the employment the greater should be the care.</p> <p>b — Employés on entering into a hazardous employment take the ordinary risks attending that service; but when servants complain of what appears to them to be an impending peril in a position to which they have been ordered, and notify the master of the danger,- and ask to be relieved, he cannot refuse to relieve them, insist upon their continuing the work in that position, and, when they remain at his direction, waiting for an inspection which he has promised but neglected to make, relying upon his promise and superior judgment, and fearing the consequences of disobedience, and are injured, be then allowed to say, “You were guilty of contributory negligence in doing what I directed you to do,” or “You assumed that risk when you entered my employment.”</p>

<p>Public lands — Internal improvements — Constitutional law — Res judicata. '</p> <p>1. One who, under contract with the State, obtains the right to select from its public domain any lands which he has earned by the fulfillment of his contract, is entitled to select the choicest and most valuable lands, and is under no moral or legal obligation to give to the State any information he may have of their value.</p> <p>2. If the State chooses to sell lands for which it has not received a patent, and a purchaser chooses to buy them, any complication thereafter arising as to title concerns only such purchaser and a patentee of the general government.</p> <p>3. Courts cannot attach limitations or provisions to an act of the Legislature because in other similar acts they have been incorporated.</p> <p>4. It is not true that it has been the uniform policy of the State, either before or since the year 1857, not to apply lands to works of internal improvement until patents had been received therefor from the general government, and the lands had been offered at public sale.</p> <p>■5. Where, in a mandamus proceeding by a contractor against the Commissioner of the State Land-Office to compel the reservation from sale of certain lands which he had selected on his contract, his right to' the lands is affirmed, the State cannot maintain a suit in equity to set aside patents of said lands issued to the contractor on the strength of such decision, upon the ground that it had another defense, which it omitted to make in the mandamus proceeding. Fifleld v. Edwards, 39 Mich. 264.</p> <p>6. The Court do not pass upon the validity of the taxes provided for in Act No. 130, Laws of 1883, and Act No. 84, Laws of 1885, to pay the cost of improving the Cedar and Looking-Glass rivers in excess of the appropriation of swamp lands ■therefor, nor upon the validity of the title to the lands patented under said acts; but simply refuse to decree the cancellation of the patents.</p>

Error and certiorari to recorder’s court of Detroit. (Chambers, J.) Eespondent was convicted of murder, and sentenced to State prison for life. The facts are stated in the opinion.

(Edget and Gage, JJ.) Bill to restrain the issue of bonds under Act No. 314, Laws of 1889, on the ground that the act is invalid. Complainant appeals. The facts are stated in the opinion.

<p>Malicious prosecution — Advice of counsel — Charge to jury,</p> <p>1. It is error to instruct the jury that one of two versions of a transaction is proven where .the testimony is conflicting regarding the same.</p> <p>2. The advice and concurrence of a public prosecutor is not a good defense to an action for malicious prosecution unless it appears that the defendant fully and fairly disclosed to such officer everything within his knowledge tending to cause or exclude belief in plaintiff’s guilt; and whether such disclosure was made is a question for the jury to determine, and not for the trial or appellate court.</p>

<p>Appeal from Berrien. (O’Hara, J.) ,</p> <p>Bill to enforce lien for taxes under How. Stat. § 1187. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Berrien. (O’Hara, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 80 Mich. 166.</p>

(Reilly, J.) Trover. Defendant brings error. The facts are stated in the opinion, where the points of counsel and the authorities are fully stated and reviewed.

Exceptions before sentence from Midland. (Hart, J.) Respondent was convicted of a violation of the liquor law by failing to keep his saloon closed on Sunday. The facts are stated in the opinion.

(Williams, J.) Bill to foreclose a chattel mortgage, for the appointment of a receiver, etc. Both parties appeal. The facts are stated in the ■opinion.

<p>Contract — Prevention of performance — Damages—Abandonment.</p> <p>1. In an action to recover a sum claimed to be due the plaintiff •under a verbal building contract, he testified that the contract }price, except a small sum reserved until the completion of the building, was to be paid as the work progressed, to enable •him to pay for labor and materials, and claimed to have been forced to abandon the contract, before, completion, by the defendant, which defendant denied. It appeared on the trial that before such abandonment plaintiff demanded §1,000 of the defendant under the contract, which was refused, and that at the time §1,400 and upwards was due, and that the §1,000 demanded did not exceed the sum due for labor and materials. And it is held that the court was justified in submitting to the jury the question whether the plaintiff was justified in quitting the job by reason of defendant’s refusal to pay the §1,000 to enable him to complete his contract, even though they found that he was not driven from the work by the defendant, as claimed by him.</p> <p>2. Where a contractor abandons the work before its completion, he cannot recover in an action upon the contract, unless he was prevented from completing it by the wrongful action of the defendant.</p> <p>8. In an action for being prevented from performing a contract for the construction of a building, the measure of damages, if the plaintiff is entitled to recover, is the difference between, the contract price and the cost of completing the work according to the specifications.</p> <p>-4. In such a case it is not error to charge the jury that if they find that the plaintiff abandoned the contract in the fall without justification, and that an offer to complete the contract, made the following spring, was not so made within a reasonable time, plaintiff is not entitled to recover.</p>

<p>Master and servant — Negligence—Fellow-servants—Directing verdict — Pleading.</p> <p>1. A failure to aver in a declaration in a negligence case that it was the duty of the defendant to have exercised due care in those respects wherein his acts are charged to have been negligent may be taken advantage of by special demurrer, but not after verdict.</p> <p>2. The Court adopt the New York rule governing the liability of the master for the negligent act of his servant, whereby another servant is injured, namely, to hold the master liable for negligence in respect to such acts and. duties as he is required to perform as master, without regard/to the rank or title of the agent intrusted with their performance, as to which acts he occupies the place of the master, who is liable for the manner in which they are performed.</p> <p>3. There was ample evidence in this case (see opinion) to go to the jury upon the question of the defendant’s negligence.</p> <p>4. Where the question of the contributory negligence of the plaintiff in a negligence case depends upon the finding of a certain fact for or against his contention, as to which the testimony is conflicting, it should be submitted to the jury.</p> <p>5. Corporations must act through agents, and it is immaterial whether the agent, if duly authorized to act as such, is or is not a stockholder.</p> <p>6. In the absence of the officers and corporators of a corporation, it may be inferred that a servant who assumes to and does discharge the duty of keeping the machinery and appliances necessary to the prosecution of the corporate business in repair is the representative of the corporation in so doing.</p> <p>7. A motion that the court direct a verdict in favor of the defendant at the close of the plaintiff’s testimony should not be granted where there are any inferences of fact to be drawn by a jury from the testimony.</p>

<p>Chattel mortgage — Provision for sale — Assignment for benefit of creditors.</p> <p>1. This case is ruled, except as stated in head-note 2, by Warner-v. Littlefield, 89 Mich. 339.</p> <p>2. A mortgagor may authorize the mortgagee to sell the mortgaged property at public or private sale; and, if no method of sale is-specified, the mortgagee may sell at public auction or at private-sale, by giving due notice to the mortgagor of the time and place of sale.</p>

<p>Contract — Settlement—Consideration.</p> <p>An agreement between a bona fide purchaser of stolen property and the owner, under which the former is permitted to retain a portion of the property by voluntarily delivering the remainder to the owner, is void for want of consideration.</p>

<p>Fire insurance — Conditions of policy — Lights—Watchman.</p> <p>1. An agreement in an application for insurance on a saw-mill, “not to use movable, open lights,” is construed to relate to the general and ordinary use of lights in and about the mill, and not to their special and necessary use in making repairs permitted to be made by the express terms of the policy.</p> <p>2. An application for insurance of mill property contained an agreement on the part of the insured to keep a watchman on the premises at all times when the mill was not in operation, and the policy provided that, if the insured should fail to keep any of the agreements' therein contained, the company should not be liable in case of loss under the policy; which forfeiture clause is construed as though the words “during such failure” followed the word “policy,” so far as the agreement to keep a watchman is concerned.</p> <p>3, The temporary absence of a watchman on saw-mill premises, for the purpose of obtaining a padlock and key which he had left at the boarding-house, 300 feet from the mill, and which he desired to use on the premises, cannot be regarded as a violation of an agreement on the part of the mill-owners in an insurance application to keep a watchman on the premises at all times when the mill was not in operation.</p>

<p>Railroad companies — Negligent loading of cars — Evidence—Oon- ” tributory negligence.</p> <p>1. In an action against a railroad company for negligence, it appeared that coal-cars, boxed in to the height of from two to two and one-half feet, but with a space about 15 inches in depth across the brake end of each car for the use of the brakeman, were loaded with lumber, which was piled to the height of from five to six feet from the car floor, and extended beyond the boxes, from eight inches at the top of the box to 18 inches at the top of the lumber, and beyond the end of the car, projecting further as the height increased, until it left a space between the lumber of but 15 inches on its surface, the space reserved for the brakeman being partially covered. And it is held that the jury were justified in finding the cars to have been improperly loaded.</p> <p>2. Where the declaration in a negligence case against a railroad company alleged it to be the duty of the defendant to see that its cars, on which plaintiff was a brakeman, were properly loaded with lumber, so as not to imperil the lives of its employés, and the testimony tended to show that they were so loaded as to increase the hazard of braking them, and that no provision was made by the defendant for their inspection, the jury are justified in finding that there was no inspection.</p> <p>3. The following propositions are summarized from the opinion of Mr. Justice McGrath:</p> <p>a — Servants assume the ordinary risks of their employment, but not those extra hazards which spring from the failure of the master to exercise reasonable care in providing such rules and regulations for the conduct of his business as to afford his servants reasonable means of protection.</p> <p>b — A servant is not negligent in presuming that his master has performed his duty.</p> <p>c — In determining the question of the contributory negligence of an operator .whose duty lies in the line of danger, all of the circumstances must be considered, and particularly those exigencies which render the prompt performance of his duty necessary.</p>

(Beillv, J.) Bill to construe a will and remove a cloud upon title. Complainants appeal. The facts are stated in the opinions.

<p>Mortgage — Removal of buildings — Lien—Foreclosure.</p> <p>Prior to the assignment of a mortgage to a bona fide assignee, the mortgagor removed the buildings from the mortgaged premises onto another lot, owned by his wife, and which she subsequently conveyed by quitclaim deed, such removal being made without the consent of the mortgagee or assignee. And it is held that the buildings were still incumbered by the mortgage, and could be sold on its foreclosure if the land did not bring enough to satisfy the mortgage.</p>

Mandamus. . Eelator applied for mandamus to compel respondent to issue certificates' for certain swamp lands on Bois Blanc island, under a State-road contract payable in lands in the Upper Peninsula of Michigan. The facts are stated in the opinion.

<p>Swamp lands — Appropriation by Legislature — Constitutional law— Minimum price — Discretion of Commissioner of State Land-Office.</p> <p>1. The power of the Legislature over the disposition of the swamp lands granted to the State by the act of Congress is plenary, and no one can call their acts in question except the Congress of the United States.</p> <p>2. Act No. 277, Laws of 1887, which appropriates State swamp lands in Bois Blanc island for the purpose of constructing a State road along or near the principal base line of said island, and which was passed by less than a two-thirds vote of the members elect, is not in violation of article 4, section 45, of the Constitution, which provides that “ the assent of two-thirds of the members elected to each house of the Legislature shall be requisite to every bill appropriating the public money or property for local or private purposes,” the construction of a State road not being a local or private purpose within the meaning of said section.</p> <p>■8. Establishing a minimum price for State land implies that a greater price may be asked; and it would be a breach of official duty if the Commissioner of the State Land-Office should sell such lands at private sale at such minimum price, when he knew they were worth double that amount.</p>

<p>Log-lien law — Affidavit—Jurisdiction—Joinder of claims.</p> <p>Certain provisions of the log-lien law of 1887 are construed as follows:</p> <p>a — The failure of the affidavit for attachment to show when • the last day’s labor of each of several claimants, who have joined in the proceedings, was performed, is not ground for ■objection, where such fact is shown by the testimony on the trial and by the statements of lien, all of which were filed within thirty days from said date. Pack v. Circuit Judge, 70 Mich. 135.</p> <p>b — An averment in such affidavit that a statement of lien required by law had been filed on a specified date with the ■clerk of the county where the labor was performed sufficiently ■shows such filing.</p> <p>c — Such affidavit need not show who is the owner of the logs upon which a lien is claimed. Babcock v. Cook, 55 Mich. 1, 7; Shaw v. Bradley, 59 Id. 199; Reilly v. Stephenson, 62 Id. 509, 515.</p> <p>d — The statements of lien are as much a part of the proceeding, and just as essential, as the affidavit for attachment, and if the two, taken together, show that the claims of several claimants who have joined in the proceeding are each less than $100, it is sufficient to give the court jurisdiction, although it would be better practice to show this fact in the affidavit as well as in the statements.</p> <p>e — It is competent for any number of persons having claims less than $100 to appoint as their agent one of the number of claimants against the same products, notwithstanding his claim may exceed $100, and he ’might, if such appointment were not made, prosecute his lien alone.</p>

<p>Conditional sale — Replevin.</p> <p>Í. A contract of sale which provides that the title to the property shall remain in the vendor until the purchase price is fully paid, but which contains no provision authorizing the vendor to retake possession in case of default, clearly implies that the right of the vendee to possession is dependent upon his making such payment as provided in the contract, and that, in the event of default and demand, the vendor is entitled to recover possession of the property.</p> <p>2. In replevin for a machine contracted to be made for the defendant, the title to which was retained in the vendor until the contract price was paid, it appeared conclusively on the trial that the contractor failed to provide certain articles required to make the machine available, which were furnished by the defendant and were seized under the writ. And it is held that the court should have directed a verdict in favor of the defendant as to such articles, the title to the same never having been in the vendor.</p> <p>3. The effect of certain instructions given to the jury on one branch of the case on their return into court for further instructions is held to have been to ignore instructions upon other points given in the original charge, and to have been error.</p>

(Peck, J.) Bill to remove cloud from title, for an injunction, and an accounting. Defendants appeal. The facts are stated in the opinion.

(Kinne, J.) Bill to restrain the defendants from raising the flushing structure on their mill-dam above a certain height. Complainant appeals. The facts are stated in the opinion.

<p>Negligence — Presumption—Falling of structure — Evidence.</p> <p>. In a negligence case to recover for the death of plaintiff’s decedent, caused by the falling of the roof of a building which the defendant was raising, evidence on the part of the plaintiff that the roof suddenly gave way, slipped or tipped, to one side, and fell, raises the presumption that it fell because not sufficiently braced or stayed; and in the absence of any showing by the defendant why the roof fell, or of negligence on the part of the deceased, the case should be submitted to the jury on the plaintiff’s proofs.</p>

<p>Rehearing, upon application of complainant, of case reported in 86 Mich. 58.</p> <p>The facts are stated in the opinion.</p>

•Error to Shiawassee. (Newton, J.) Negligence case. Defendant brings error. and no new trial granted. The facts are stated in the opinion.

<p>Mandamus — Action for negligence — New trial — Discretion of circuit judge.</p> <p>1. This Court will not undertake to review the questions involved in the trial of a cause upon an application for mandamus to compel the circuit judge to vacate an order granting a new trial.</p> <p>2. Trial courts have a large discretion in the matter of granting new trials, with the exercise of which this Court will not interfere, unless the abuse of such discretion is palpable; citing Stork v. Judge, 41 Mich. 5; Insurance Co. v. Circuit Judge, 20 Id. 220; Shimer v. Circuit Judge, 17 Id. 67.</p> <p>3. Where, on the trial of a negligence case, the plaintiff’s testimony was material upon the question whether his view of the railroad track, was obstructed by cars standing on the side track, and by reason of his physical disability he was unable to submit to cross-examination, whereupon his direct examination was stricken out on motion of defendant’s attorney, and the jury, in answer to a special question, found that there were no cars standing on said side track at the time of the accident, which finding was claimed to conflict with their general verdict in favor of the plaintiff, and a motion for judgment in favor of the defendant on such special finding was denied, and judgment rendered on the general verdict, after which plaintiff was granted a new trial upon affidavits of his physicians giving assurance that he would be able to give his testimony on a second trial, there was no abuse of discretion in granting such new trial.</p>

Mandamus. Delator applied for mandamus to compel respondent to levy the State tax apportioned to the county of Menominee for the year 1891. The facts are stated in the opinions.