Volume 90 — Michigan Reports

Mandamus. Eelator applied for mandamus to compel respondent to dismiss an appeal from an order of the probate court-The facts are stated in the opinion.

Habeas corpus proceeding. Charles A. Jordan applied for the writ of habeas corpus to inquire into the cause of the detention of his wife, Sarah Jones Jordan, at the State Industrial Home for Girls. The facts are stated in the opinion.

Mandamus. Kelators applied for mandamus to compel- respondent to sign a warrant for the purchase of a town-hall site. Issue tried in the Oakland circuit, before Moore, J. The facts are stated in the opinion.

<p>Practice in circuit court — Appeal—Error without prejudice— Estoppel — Evidence.</p> <p>1. Where concessions of counsel are recited in the charge to the jury, they will be presumed to have been made, unless the record shows that before the jury retired the attention of the court was called to the matter, and an opportunity given for correction.</p> <p>2. The objection that plaintiff cannot recover because only described in the declaration as “trustee,” when he should have counted in his representative character, is ruled by Smith v. Pinney, 86 Mich. 492,</p> <p>3. Where actual notice of a chattel mortgage is shown, evidence of its filing, though improperly admitted, is error without prejudice.</p> <p>4. A party who puts another in possession of property, together with the muniments of title or indicia of ownership, may be estopped from afterwards setting up title in himself as against a bona fide purchaser for value; but, in order to avail himself of such estoppel, the purchaser must show that he relied upon and was misled by such possession and muniments of title.</p> <p>5. After the execution of a chattel mortgage upon a quantity of saw-logs to secure the payment of certain discounted drafts drawn by the mortgagee upon the mortgagors, it was agreed between the parties to the mortgage and the holders of the drafts that the mortgagors should waive the conditions of the power of sale, and that the mortgagee should proceed under the mortgage, manufacture the logs into lumber, and market the same, pay the expenses, take up the drafts, and pay the surplus, if any, to the mortgagors, whereupon the mortgagee assigned the mortgage to himself as trustee; which assignment is held to give him the undoubted right to follow the mortgaged property.</p> <p>6. Errors assigned upon the exclusion of testimony which was ' subsequently admitted will not be considered.</p> <p>7. In a suit by a mortgagee to recover for logs sold by a mill-owner, to whom they had been delivered for the purpose of manufacture by the mortgagor, who had mortgaged them prior to such sale, the plaintiff may show the relations existing between the mill-owner and his vendee, and to that end that the vendee held a mortgage on the mill property.</p> <p>8. Evidence of the failure of the mill-owner to make any claim of ownership of the logs during conversations with an employé who represented the mortgagors, such conversations tending to show that such employé had given directions for the mortgagors as owners of the logs regarding their scaling and acceptance or rejection, is admissible.</p>

Mandamus. Eelator applied for mandamus to compel respondent to vacate an order made in habeas corpus proceedings discharging the defendants from custody under a body •execution issued on a judgment recovered by relator. The facts are stated in the opinion.

(Lane, J., presiding.) Bill to set aside a deed alleged to be in fraud of creditors. Complainant appeals. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to meet and correctly canvass certain votes cast for aider-man. The facts are stated in the opinion.

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

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

<p>Mutual benefit associations — Change of beneficiary — Loss of certificate — Disposition by will.</p> <p>1. A court of equity will recognize the disposition by will of a certificate of insurance in a benefit association, where, by reason of the member having lost or mislaid the certificate without fault on his part, it is impossible for him to name a new beneficiary by indorsement upon the certificate, as required by the by-laws of the association.</p> <p>2. The Court distinguish such a case from Supreme Lodge v. Nairn, 60 Mich. 64, and follow Grand Lodge v. Child, 70 Mich. 163.</p>

(Adsit, J.) Bill to set aside a deed and mortgage on the ground of fraud, and to compel the defendants to refund the money paid by complainant. Defendant Stone appeals. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondents to assess a certain judgment upon the tax rolls of the city of Au Sable for the year 1891. The facts are stated in the opinion and foot-note.

<p>Appeal — Administrator's deed — Evidence—Adverse possession.</p> <p>1. The Court will treat as properly before it a question raised by an objection to testimony, although not sufficiently specific, where the same question is likely to arise on a second trial, and the judgment must be reversed on other grounds.</p> <p>2. Act No. 20, Laws of’ 1867 (How. Stat. § 5678), which provides that a deed executed by an executor, administrator, or sheriff, the record thereof, or a certified copy of such record, shall be prima facie evidence of the regularity of all proceedings required by law anterior to such deed, is retroactive in its operation.</p> <p>3. The provision in Act No. 315, Laws of 1865, that the “Scranton Abstract,” so called, owned by Kent county, Michigan, shall have the same virtue and effect as by present provisions of law the records of the office of register of deeds do possess, was not intended to preclude the use of such records for all purposes, and with such effect, as the Legislature at any subsequent time saw fit to give to public records as evidence, but was intended to express the purpose of the Legislature to give to such abstract the same virtue and effect as only the record of deeds would possess but for that enactment.1</p> <p>4. It is not necessary, in order to entitle one to claim title by adverse possession, that the premises should be inclosed by a fence, or that when a fence is used it should be of any par- . ticular kind; citing Murray v. Hudson, 65 Mich. 674; Beecher v. Galvin, 71 Id. 395; Greene v. Anglemire, 77 Id. 171.</p> <p>5. Where the testimony in support of a claim of adverse possession tends to show a continuous use of the land, by cutting the grass and pasturing cattle thereon each year during the period of occupancy, in addition to planting trees upon the premises, it is a question for the jury whether such occupancy was practically continuous, exclusive, and hostile, and intended to be such by the claimant.</p> <p>6. Evidence of the assessment of land to a claimant by adverse possession is admissible as tending to show such possession, and, while not of any great value, its weight is for the jury; citing Rayner v. Lee, 20 Mich. 387; Murray v. Hudson, 65 Id. 676.</p>

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

<p>Fraudulent conveyances — Evidence—Bill of sale — Charge to jury.</p> <p>1. The absence of any showing of the amount due on a writ of attachment, under which a sheriff claimed to hold property replevied from him by a vendee of the attachment debtor, is immaterial, where the case is submitted to the jury upon the question whether or not the transfer was fraudulent as against creditors, and the jury find that it was not so fraudulent.</p> <p>2. In the absence of any evidence tending to show that the bill of ' sale, under which the plaintiff in replevin claimed the property, was taken as security, and not as an absolute transfer of the property, in payment of a debt due the vendee, as claimed by the plaintiff, a request to charge based upon that theory was properly refused.</p> <p>3. The only question to be submitted to the jury was whether or not. the transfer to the plaintiff was fraudulent as against creditors, and this was fairly submitted, and the law of the case correctly stated. See opinion, page 64</p> <p>4 The exclusion of two orders for goods given by plaintiff’s vendor, one three days before and one on the day the bill of sale was executed, was harmless error, if error at all, no attempt being made to connect the plaintiff with the giving of such orders, or to show that he knew of their being made, with fraudulent intent on the part of the vendor, and, so knowing, participated in the fraud.</p>

(O’Hara, J.) Bill to declare a deed a mortgage, and to foreclose the same. Defendant appeals. The facts are stated in the opinion.

(Grove, J.) Bill to subject assets to an assignment for benefit of creditors. Both parties appeal. The facts are stated in the opinion.

(Newton, J.) Bill to redeem. Complainant appeals from a decree confirming the report of the commissioner on an accounting. The facts are stated in the opinion.

(O’Hara, J.) Bill to declare a deed and land contract a mortgage, and for an accounting.. Defendants appeal. The facts are stated in the opinion.

<p>Municipal corporations — Defective streets — Negligence—Survival of action — Act causing death.</p> <p>1, The right of action of a person for injuries sustained from defective highways, etc., under Act No, 264, Laws of 1887 (3 How. Stat. § 1446c et seq,}, survives, in case of his death, to his administrator, under Act No. 113, Laws of 1885 (3 How. Stat. § 7397).</p> <p>2. The general law of the State (How. Stat. §§ 8313, 8314) under which the personal representatives of a deceased person can recover damages in case Mb death was caused by such wrongful act, neglect, or default as would, if death had not ensued, have entitled him to maintain an action therefor, is not nullified by section 5 of Act No. 264, Laws of 1887 (3 How. Stat. § 1446p), in respect to injuries received upon the public streets and highways by reason of neglect to keeP them in repair.</p> <p>3. It was evidently intended by the Legislature that no living person should recover for his bodily injuries received upon public streets and highways by reason of neglect to keep them in repair, except under or by virtue of the provisions of Act No. 264, Laws of 1887; but there is no express or implied declaration in said act that, in case of the death of such person from such injuries, the right of action shall die with him, or that his personal representatives cannot recover under the general law (How. Stat. §§ 8313, 8314), as in other cases of negligent injury.</p>

' (O’Hara, J.) Bill to set aside a deed on the grounds of undue infuence and the mental incapacity of the grantor. Complainants appeal.. The facts are stated in the opinion.

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

<p>Fire insurance — Cancellation of policy — Evidence— Waiver of conditions.</p> <p>' 1. A provision for the cancellation of an insurance policy by the company upon five days’ notice to the insured cannot be made operative without such notice, or a waiver thereof.</p> <p>2. An insurance company claimed, in a suit to recover insurance, that it had ordered its agent to cancel the policy, and give the .required notice to the insured, which the agent claimed to have done, but which was denied by the insured. And it is held competent for the insured to show that such notice was not given; and also to show that in fact there had been no surrender or cancellation of the policy, by proof of any act of the company, or of any person through whom the cancellation would ordinarily be effected, or who, upon the theory of the company, was charged with that duty, inconsistent with such cancellation.</p> <p>3. Certain receipts, to which the attention of a witness had been called for the purpose of comparison of the signature of the receiptor with his alleged signature to an application for insurance, the genuineness of which he denied, were admitted in evidence; and in answer to a proposition of counsel to submit the receipts to the jury, made after the proofs and arguments were closed, the court stated in the presence of the jury that he did not think they ought to be considered by the jury at all, and practically directed the jury not to consider them. And it is held that, even if the receipts were erroneously admitted, they were not submitted to the jury, and the error was without prejudice.</p> <p>4. In a suit upon a policy of insurance the defendant produced an application purporting to be signed by the plaintiff’s husband, which he denied having signed. Plaintiff then called an expert witness, who testified that the disputed signature was in the same handwriting as the body of the application, and of the policy, which had been shown to him, and upon cross-examination testified that before taking the stand he had compared the application with another policy issued to the insured. Upon redirect examination he was shown both policies, and testified that they were in the same handwriting, and upon recross-examination, in answer to the question if he based his testimony on an examination of the latter policy, said, “I base it on the writing;” whereupon counsel for the defendant moved to strike out the testimony as based upon a policy not in the case, which motion was denied. And it is held that the second policy was introduced into the case by defendant’s counsel, and, if both policies were in the same handwriting, it was immaterial with which the witness, when not upon the stand, had compared the disputed signature; and that his . statement that he based his testimony upon the handwriting did not necessarily exclude either.</p> <p>5. A request to charge which assumes the existence of questions of fact which are for the jury to find is properly excluded.</p> <p>6. In a suit upon an insurance policy which the company claimed to be void for non-payment of the premium, upon which a credit had been given by the agent, the plaintiff claimed that she offered to pay the premium to the agent about the time the credit expired, and that he told her to let it rest until the company had finally concluded as to the cancellation of the policy. This was denied by the agent, but he admitted that he never asked for payment of the premium, and that he assured the insured several times prior to the fire that the property was still insured. And it is held that such assurances from one whose duty it was to collect the premium, and who had given the original credit, amounted to an indefinite extension of time for such payment, and that, before the company can take advantage of the failure to pay, it must show a demand and a failure to respond.</p>

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

<p>Error to superior court of Grand Rapids. (Burlingame, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

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

<p>Set-off — Bills and notes — Evidence—Notice to produce papers.</p> <p>1. A claim for the amount remaining unpaid on a promissory note, which the payee surrenders to the maker on payment of the balance due thereon, which amount the maker agrees to pay, is a proper , subject of assignment under the statute; and where, in such a case, the payee assigns such claim to a firm of which he is a member, the assignees can set it off in an action of assumpsit brought against them by the maker.</p> <p>2. The better practice is to give notice to produce papers in the possession of the opposite party before entering upon the trial, but the reasonableness of the notice depends upon the circumstances of each case, and is a matter for the court.</p> <p>3. A note which has been surrendered to the maker upon his agreement to pay the balance due thereon is a dead instrument, the existence of which may be shown by parol.</p>

<p>Sale — Construction of contract — Parol evidence — Damages.</p> <p>1. An agreement to furnish a former customer with a quantity of harrow teeth of the vendee’s regular patterns, “ such as heretofore furnished,” is construed to mean teeth to correspond in ■ quality with the teeth theretofore furnished, it appearing that on the day the agreement was made the parties had tested the quality of the teeth so furnished.</p> <p>2. The contract provided that shipments of the goods were to be made as specified; and the vendor further agreed to' furnish enough teeth, in addition to the amount named, for the vendee’s season’s trade, and was to have a reasonable time and notice in which to fill orders for the same, “ say about 30 days.” The teeth were to be manufactured from different patterns belonging to the vendee. And it is held that the vendor was to have a reasonable time under the contract, after the goods were specified or named, within which to ship the same, and that parol evidence to show that he agreed to keep the teeth on hand ready for immediate shipment was incompetent.</p> <p>3. Expenses ’incurred by the vendee in making sales in anticipation of the delivery of the harrow teeth within the time required by the contract, and which he failed to complete by reason of the vendor’s failure so' to deliver, may be recouped as damages by the vendee in a suit by the vendor upon the contract.</p>

<p>Chattel mortgage — Bona fide purchaser — Notice—Conversion— Costs.</p> <p>1. Actual notice to the purchaser of property of an unrecorded chattel mortgage thereon is equivalent to filing the mortgage, under How. Stat. § 6193.</p> <p>2. An agreement for the sale of a building standing on leased land, by which the purchaser agrees to pay the purchase price in specified installments, and to forfeit all claim to the building in case of a failure to make such payments, and upon demand deliver up possession to the vendor, and forfeit all payments made thereon, is held to operate as a chattel mortgage.</p> <p>3. If possession is taken under such an agreement, and the building subjected to its lien without any foreclosure proceedings, the vendor is bound, as against the vendee, to account for the value of the building in excess of his lien.</p> <p>4. If such value is found to be less than §100 in a suit brought by the vendee in the circuit court for its recovery, the vendor is entitled to a judgment for costs.</p>

<p>Negligence — Street railway• — Injury while alighting from car — Damages.</p> <p>1. The Court know of no rule of law that forces a passenger upon a street-railway car to rush for the steps of the platform as soon as the car stops, or that forbids his giving precedence to a lady, or to others more infirm than himself.</p> <p>2. Passengers upon a street-railway car have a right to assume that the car will not be started, after it has stopped to allow passengers to alight, until the driver has used reasonable care and diligence to ascertain whether any passenger is in the act of alighting, and that when the car is started it will be with reasonable care, and not in a sudden and violent manner.1</p> <p>3. In the absence 'of proof in a negligence case of the value of the plaintiff’s time while laid up from the injury, or how much he was capable of earning before the injury, there is no basis upon which the jury can estimate his future damages on account of the impairment of his power to earn money by reason of the injury.</p>

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

<p>Principal and surety — Release of surety.</p> <p>1. Where the sureties on an insurance agent’s bond assisted him to raise the money to make up a deficit due the' company, and thereupon notified it by letter of such fact, and that they refused to be longer liable on the bond unless the company insisted upon monthly settlements with the agent, a failure on the part of .the company to comply with such condition will release the sureties from further liability.</p> <p>2. Where, in a suit upon the bond to recover a deficit arising • after such notice, the sureties defend upon the theory of such notice, and of the failure of the company to require such monthly settlements, and the company meet such defense by a denial of the receipt of the notice, and of knowledge of the first default of the agent as to the sureties, and of their furnishing the money to make up the first deficit, the court should instruct the jury that if the contention of the company is established it is entitled to recover.</p> <p>3. Where in such a suit it appears that, upon receiving notice of such second deficit, the sureties notified the company that they did not intend to pay any more of the agent’s accounts, and that they required the company to return their bond, there can be no recovery by the company for any moneys appropriated by the agent after the receipt of such notice.</p>

<p>Mutual benefit associations — Insurance—Suicide.</p> <p>One who shows sufficient intelligence to employ a rope, adjust it, and commit suicide by hanging, cannot be said to be so unconscious of the natural physical result of his acts as to prevent the operation of a law of a benefit association, of which he is a member, prohibiting the payment of any benefit upon the death of a member who commits' suicide, whether sane or insane at the time of its commission; such a case being ruled by Streeter v. Society, 65 Mich. 199.</p>

(Brevoort, J.) Bill to abate a line fence erected by defendant. Defendant appeals from an order granting the relief sought without a hearing on the merits. The facts are stated in the opinion.

<p>Highways — Encroachment—Adverse possession — Appeal.</p> <p>The testimony in this case being conflicting, and the circuit judge, before whom it was taken, having had an opportunity to see the witnesses, and determine what reliance should be placed upon their testimony, the decree is affirmed.</p>

<p>Replevin — Judgment for value — Evidence.</p> <p>A defendant in replevin, in order to show himself entitled to a judgment for the value of the goods replevied, need not, in addition to showing possession under a claim of title, prove that he has a title as against all the world, when no right or title whatever appears in the plaintiff.</p>

<p>Evidence — Credibility of witness — Attachment—Taking papers to jury-room.</p> <p>1. A father-in-law testified that his son-in-law, at the time of making certain notes, agreed to pay them in the fall when he butchered his hogs, out of the avails of the pork, and other products of the farm. The son-in-law, on cross-examination, testified that the first talk he had with lift father-in-law about letting him have the hogs as payment upon the notes was about two weeks before he transferred them to him (being long after the making of the notes), and was then asked the following question: “Then it is not correct, as your father-in-law testified, that, when he let you have the money in the spring, the talk was that, when you killed your hogs in the fall, you would pay him? Have any such talk as that? ” which question is held to have been properly excluded, unless the clause, “ as your father-in-law testified,” was eliminated therefrom.</p> <p>2. Where before attaching a number of hogs, which the plaintiff claimed the defendant had sold with intent to defraud him, the plaintiff, in a conversation with the purchaser, claimed to own one-half of the hogs, the purchaser may show on the trial of a replevin suit brought to recover the hogs, as affecting the credibility as a witness of the plaintiff in the attachment suit, that he did not sue for one-half of the hogs in such suit, and that he made no such claim in his bill of particulars, but based his right to recover a judgment upon other items.</p> <p>3. On the trial of a replevin suit brought by the debtor’s vendee to recover attached property, the plaintiff in the attachment suit testified that, in a conversation had with the debtor and his wife about a week prior to the issuance of the writ of attachment, he did not tell the debtor how much he owed him, because he did not know, and that he had never figured out the indebtedness at all. And it is held proper to ask him on cross-examination if he did not swear in the attachment affidavit that the debtor owed him §100, as near as he could estimate the same, and if he never did any figuring on the account, or made any computations or estimate of the amount the debtor was owing him, how he came so to swear in said affidavit; and on objection being made to the questions counsel had the right to withdraw them, and error is not assignable on his statements that he would not insist upon the question, and that both statements were before the jury, such being the fact.</p> <p>4. Where on the request of counsel for a defendant that certain notes and a bill of sale, upon which the plaintiff based his claim, be taken by the jury, plaintiff’s counsel objected unless the bill of particulars was also taken by them, and the court ruled that, if any of the papers offered in evidence were to go to the jury, all should go that had been admitted in evidence, and that, if any were excluded, all should be, to which decision no exception was taken, it will be presumed that defendant’s counsel was willing that all should go, rather than that all should be excluded,, it appearing from the record that all of such papers were sent to the jury-room.</p>

(Gage, J.) Defendants appeal from the disallowance of their claim against the estate of Anna M. Winter, deceased. The facts are stated in the opinion.

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

<p>Railroad company — Duty to passengers — Injury while alighting from train.</p> <p>1. It is the duty of the conductor or brakeman on a passenger train to call out the stations, but not to awaken passengers; it being the passenger’s duty to keep awake if he wishes to alight.</p> <p>3. The employes of a railroad company are not charged with the duty of assisting a passenger to alight, or of pointing out to him the proper place to alight, where they have no knowledge of his desire or intention to do so.</p>

<p>Attorney and client — Assignment of claim to secure fees — Settlement of suit by client — Final judgment — Writ of error.</p> <p>1. Where with notice that the plaintiff had assigned his interest in the suit to his attorney to secure the payment to him, for his services in the case, of an agreed percentage of the amount recovered, the defendant settles with the plaintiff, and pays him the amount found to be due him, less the percentage due the attorney, which the defendant retains, and a' stipulation is filed, signed by the plaintiff and defendant, setting forth the settlement, and consenting to a discontinuance of the suit, and directing the clerk to enter an order to that effect, which order is not entered, nor the sum so retained tendered to the attorney or paid into court, the suit is not discontinued, and the attorney may recover judgment therein for the sum so retained by the defendant.</p> <p>2. An order denying a motion by plaintiff for judgment in his favor, on the ground that the suit had been discontinued by stipulation, is in effect a final judgment, and may be reviewed on writ of error.</p>

<p>• Trespass — Statute of limitations — Possession of premises,</p> <p>1. A plaintiff cannot recover damages in an action of trespass, commenced after the right of action for the original disseisin is barred by the statute of limitations, for acts committed after such disseisin, and while the defendant was in full possession of the land.</p> <p>2. For a discussion of the other questions involved in this case, see Wood v. Railroad Co., 90 Mich.-(51 N. W. Rep. 263).</p>

<p>Written contract — Parol evidence — Conditional sale.</p> <p>After the execution and delivery of a contract for the sale of logs, it was discovered that an' agreement for the retention of title in the vendors until the logs were paid for had been omitted though a mistake of the scrivener, who had been directed to insert it, and it was verbally agreed that the contract should be treated the same as if it contained said agreement; whereupon the vendees, before the separation of the parties, and pursuant to the conditions of the contract, executed and delivered their notes for the purchase price of the logs. The logs were delivered to the vendees, and after manufacturing a portion into lumber they sold the same to a third party, from whom it was replevined by the original vendors, who on the trial of the replevin suit sought to show said verbal agreement. And it is held that the giving of the notes was a part of the contract, and necessary to its completion; and that the whole proceeding must be regarded as a part of one and the same transaction, and as falling within the rule that written instruments are not to be changed or varied by contemporaneous parol agreements.</p>

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

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

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

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

<p>Negligence — Railroad companies — Injury to employe — Fellow-servants.</p> <p>A railroad company which is not shown to have had any knowledge that an engine step, upon which one of its brakemen stepped in attempting to mount a .moving engine, and was injured,.was out of repair, is not liable for negligence, it not appearing how long the step had been out of repair, and hence that the defect had existed for such a length of time as to raise a presumption of such knowledge on its part, or that the engineer, whose duty it was to see to the step, was incompetent, or not supplied with the proper tools to repair it; he being a fellow-servant of the brakeman, and the company not being liable if the step became loose by reason of his neglect.</p>

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

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

<p>Executors and administrators — Appointment of debtor of deceased —Payment—Mortgage.</p> <p>1. The application of the equitable doctrine that when a debtor is appointed executor of the will of his creditor, and accepts the trust, the debt is presumed to. have been paid, and is treated as an asset in the executor’s hands for the payment of debts and legacies, does not operate to discharge a lien by which the debt is secured; citing Woerner, Adm. § 512; Kinney v. Ensign, 18 Pick. 232; Soverhill v. Suydam, 59 N. Y. 140.</p> <p>2. The assignee of a mortgage nominated the mortgagor as one of his executors, who accepted the trust, and with his co-executors inventoried the mortgage, which was duly recorded, as a part of the assets of the estate, but made no mention of the accompanying note. He then sold the land on contract, representing it to be unincumbered, and received $700 of the purchase price, after which $700 was paid to defendant’s attorney, and after the mortgage had been assigned to a legatee by the executors pursuant to an order of distribution, and before he was discharged as executor, Nichols received the balance due on the contract, and executed a warranty deed to the vendee, who conveyed the land by warranty deeds to his son and daughter. After the father’s death the legatee commenced to foreclose the mortgage by advertisement, and the son and daughter filed a bill to enjoin the foreclosure proceedings. A decree was made applying the two $700 payments upon the mortgage, but holding the remainder of the mortgage debt a lien upon the land, and that the nomination of the mortgagor as executor did not operate to discharge the mortgage nor the lien on the land, but that the mortgage became an asset in the hands of the executors, to be inventoried and treated like other assets, and that the assignment was valid, and vested the ownership of the mortgage in the legatee. And in affirming the decree upon the sole appeal of the complainants, the Court hold:</p> <p>a — That the fact that the note which the mortgage was ,given to secure, and which is referred to therein, was not mentioned in the inventory, is immaterial in this case; that its production by the defendant upon the hearing leads to the presumption that it was delivered to the testator by his assignor, was among the assets of his estate, and was, with the mortgage, transferred to the legatee; and as both securities were treated as assets belonging to the estate by the executors, by the probate court, and by the legatees, the legal title to both passed to the legatee by the assignment.</p> <p>b — That the equity of redemption was owned by the mortgagor, and did not become an asset of the testator’s estate by his appointment as executor, and acceptance; and that, whatever good morals may have required on his part upon the receipt of the money for the sale of this interest in' the land, neither the estate nor the legatee acquired any interest in the money received after' the estate was closed as to the legatee. ■</p> <p>o — That the complainants have a complete remedy at law upon the mortgagor’s warranty of title; and the fact that he has absconded, and left no property which can be seized to satisfy their damages, affords no ground of equitable relief against the legatee.</p>

<p>Pleading — Trover—Exempt property.</p> <p>1. In trover against a sheriff for the conversion of exempt property seized on execution, an allegation in the declaration that the defendant, by his deputy or agent, naming him, did convert and dispose of the property, is sufficient to show that the deputy was acting under the defendant as sheriff.</p> <p>2-, In such a case the usual declaration in trover is sufficient to enable the plaintiff to show the facts essential to a recovery, the contrary doctrine announced in McCoy v. Brennan, 61 Mich. 363, being regarded as obiter.</p> <p>3. Under How. Stat. § 7686, subd. 8, which exempts from sale on execution the “ tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things to enable any person to carry on the profession, trade, occupation, or business in which he is wholly or principally engaged, not exceeding in value $350,” a farmer can claim such exemption from hay, oats, corn, a yearling steer, a heifer, two spring calves, and a quantity of clover seed and cornstalks on his farm at time of the levy, exceeding in value said exemption.</p>

Mandamus. Belator is one of several defendants in a cause pending in the Wayne circuit court, in chancery. Complainant, at a time when the cause was at issue as to all of the defendants but J., demanded an examination of wit-messes in open court. Subsequently, and on December It, 1891, the demurrer of J. to the bill was overruled, -with leave to answer, the cause to stand for hearing at vthe January term, 1893, and the answer of J. was filed December 38.

Mandamus. Eelator is complainant in Petrie v. Torrent, 88 Mich. 43, in which case an accounting was ordered on the sale by the defendant of pine lands, of which complainant held a verbal option, and which were deeded to defendant, who furnished the purchase money, under an agree•ment to give complainant one-third of the net profits resulting from the transaction.

Mandamus. Relator, as controller of tbe city of Saginaw, received from tbe clerk of tbe police court of said city certain files and papers relating to proceedings in said court. Subsequently respondent ordered tbe return of said papers, the clerk in tbe mean time having resigned. The order was not complied with, and an attachment issued for relator, and he was adjudged guilty of contempt, and sentenced; whereupon be applied for mandamus to‘set aside said contempt order.

Mandamus. Relators applied for mandamxis to compel tbe respondent to issue warrants on the county treasurer for their salary as deputy game and fish wardens at the rate of $1,000 per year.

Mandamus. Eelator applied for a writ of mandamus to vacate an order amending an enrolled decree. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the delivery to him of the books, papers, and money in respondent’s hands as former treasurer. The facts are stated in the opinion, and in Attorney General v. Highland Park, 88 Mich. 653.

<p>Habeas corpus — Review on mandamus.</p> <p>Where a circuit judge has jurisdiction, his order in habeas corpus proceedings discharging a prisoner confined in the State prison under a void sentence cannot he reviewed by mandamus.</p>

<p>Divorce — Appeal by wife — Costs.</p> <p>The defendant having appealed from a decree granting complainant a divorce on the ground of adultery, and it appearing that she is without means, and that he is the owner of at least $25,000 of available property, defendant is allowed the sum of $775 for the expenses of her appeal.</p>

Mandamus. Eelator applied for mandamus to compel respondent to assess a drain tax. The facts are stated in the opinion.

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

<p>Mortgage — Payment—Bight of assignee — Bills and notes.</p> <p>1. A mortgagee assigned the mortgage and accompanying negotiable note by delivery, and before maturity, as collateral security to his note, and the mortgagor, in ignorance of such assignment, paid the mortgage debt to the administrators of the mortgagee, who did not produce nor have in their possession the note or mortgage; which payment is held no defense to the foreclosure of the mortgage by the holder of the securities.</p> <p>2. How. Stat. § 5687, which provides that the recording of an assignment of a mortgage shall not, in itself, be deemed notice to the mortgagor so as to invalidate any payment made by him to the mortgagee, is construed to mean that the mortgagor shall not be required to search the records before making payment to one prima facie entitled to receive it, who, in case of negotiable securities, is the holder alone.</p> <p>3. Neither under the statute cited nor the law-merchant can the maker of a negotiable note assume that it has not been transferred, and make payment thereof before maturity to the original holder, and thus defeat the rights of a purchaser for value before maturity.</p>

<p>Fraudulent conveyances — Estoppel—Evidence.</p> <p>1. It is error to permit a party to prejudice the jury by improper and immaterial statements volunteered on his cross-examination.</p> <p>3. Where the attention of a defendant is called on cross-examination to a chattel mortgage given by him to the plaintiff, the existence of which tends to support plaintiff’s claim upon the trial, plaintiff cannot, by not offering the mortgage in evidence, deprive the defendant of the right to explain its execution; but if such explanation is made, it is error to reject the mortgage when afterwards offered in evidence by the plaintiff.</p> <p>3. A mortgagor may dispute the validity of the mortgage by showing that it was given without consideration, and for the purpose of defrauding his creditors, in a suit brought by the mortgagee to enforce the mortgage; citing Judge v. Vogel, 38 Mich. 569.</p> <p>4. The rule in relation to a conveyance given to defraud creditors, and without consideration as between the parties, is that the law will not aid either of the parties committing or attempting to commit the fraud, but will leave them where they have placed themselves, without relief. If the contract is executory, it will not be enforced; and if executed, it will not be relieved against. If it' has been performed in part, the law gives it effect in so far as executed, and holds it void in so far as it remains unexcuted. Quirk v. Thomas, 6 Mich. 77.</p>

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

Mandamus. Eelator applied for mandamus to compel the respondent to serve a warrant of commitment issued by a justice of the peace in execution of a sentence for contempt. The facts are stated in the opinion.

<p> Mandamus. </p> <p>Eelators applied for mandamus to compel respondent to make and attach to a petition for the removal of a public officer a statement that, in his opinion, the case demanded investigation, as provided by How. Stat. § 653., The facts are stated in the opinion.</p>

<p>Appeal from Roscommon. (Aldrich, J.)</p> <p>Bill to set aside taxes. Both parties appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Rehearing, upon application of complainant, of case reported at page 314, ante.</p>

<p>Error to Wayne. (Hosmer, J.)</p> <p>Garnishment proceeding. Garnishee defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Jackson. (Loveridge, J., presiding.)</p> <p>Ejectment. Defendants- bring error.</p> <p>The facts are stated in the opinion.</p>

<p>- Error to Bay. (Cobb, J.)</p> <p>Trover. Defendants bring error.</p> <p>Tbe facts are stated in the opinion.</p>

<p>Certiorari to the recorder’s court of Detroit to review proceedings resulting in the conviction of respondent on a charge of obstructing a public alley. (Chambers, J.)</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill to foreclose a chattel mortgage. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Justices of the peace — Replevin—Jurisdiction,</p> <p>It is not a good' plea to the jurisdiction of a justice of the peace to issue a writ of replevin that the property is held by the defendant as an officer, under a writ of attachment issued by another justice of the peace.</p>

<p>Appeal from Saginaw. (Gage, J.)</p> <p>Bill to cancel a chattel mortgage. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

Exceptions before judgment from the recorder’s court of Detroit. (Chambers, J.) Respondent was convicted of obtainihg property by false pretenses. The facts are stated in the opinion.

Exceptions before judgment from Chippewa. (Steere, J.) Respondent was convicted of keeping a house of ill fame. The facts are. stated in the opinion.

Exceptions before judgment from superior court of Grand Eapids. (Burlingame, J.) Eespondent was convicted of failing to keep his saloon closed on Sunday. The facts are stated in the opinion.

(Burlingame, J.) Respondent was convicted of failing to keep his saloon closed on Sunday. The facts are stated in the opinion.

Exceptions before judgment from Muskegon. (Diekerman, J.) Respondent was convicted of failing to keep his saloon closed on Sunday. The facts are stated in the opinion.

Exceptions before judgment from Schoolcraft. (Steere, J.) 'Respondent was convicted of selling liquor as a beverage without paying the tax required by Act No. 313, § 1, Laws of 1887. The facts are sufficiently stated in the opinion.

<p>Exceptions before judgment from Dickinson. (Stone, J.)</p> <p>Respondent was convicted of assault.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Eelator applied for a mandamus to compel the respondent to dismiss a bill for divorce, etc., for want of the statutory verification. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondent to rescind an order that a certain drain tax should not be spread upon certain land, and to direct the spreading of the tax. The facts are stated in the opinion.

(Chambers, J.) Proceedings to condemn a right of way for ■ boulevard purposes across the property of respondents. Respondents appeal. The facts are stated in the opinion.

(Newton, J.) Bill to set aside an administratrixes sale, for partition, and an accounting of rents and profits. Complainant appeals. The facts are stated in the opinion.

<p>Fire insurance — Conditions of policy — Other insurance — Pi’oofs of loss — Property covered — Evidence—Appeal—Costs.</p> <p>1. One of two owners of a quantity of eggs insured his interest in the property. The policy provided that he should notify the company of any other existing or after insurance applying to the property, or any part thereof, and that the policy should be void if the assured should fail to comply with its terms, conditions, or covenants, or if he should then or thereafter have any other policy purporting to create insurance on the property, or any part thereof, without the consent of the company indorsed on the policy. The co-owner afterwards insured his interest in the eggs in another company, without the knowledge or consent of the holder of the first policy, which is held not to be avoided by the taking of such insurance.</p> <p>2. None of the forfeiture clauses of an insurance policy referred to the adjustment of loss thereunder, proceedings for which were to be in accordance with the terms and stipulations printed on the back of the policy. Among these was a provision by which proofs of loss were to be furnished within 30 days after a loss occurred; and it was further provided that the claim of the assured should not be due or payable until 60 days after such proofs were furnished, and that no suit for the recovery of the claim should be sustainable unless commenced within 6 months next after the fire occurred; which provisions are held to furnish their own penalty for a failure to furnish proofs of loss within the time limited in the policy; citing Tubbs v. Insurance Co., 84 Mich. 646.1</p> <p>3. An insurance company insured against loss or damage by fire “to the following described property, only while located and contained as described herein, and not elsewhere, to wit, $1,000 on stock of eggs in store (in pickle),” contained in the basement of a designated dwelling-house. And it is held that the words “in pickle” do not necessarily imply that the stock of eggs should be insured only when in vats, and that it was competent to show that they were intended to be covered at any time while in store and undergoing the process of pickling for market, in its various stages, including the process of drying, and while packed in crates, and until actual shipment from the assured’s place of business; it appearing that the agent who wrote the policy visited the premises, and knew of the manner in which the business was conducted.</p> <p>4. Where, after a case is removed to the Supreme Court, the plaintiff remits an admitted excess in the verdict as directed by the lower court; and the defendant brings the case to a hearing, and the judgment is affirmed except as to such excess, the plaintiff will recover the costs of both courts.</p>

<p>Street railways — Negligence—Collision.</p> <p>Plaintiff was run into by one of the defendant’s cars, operated by electricity, while being driven home by her husband, after dark, upon its track. The car was not lighted, and had no headlight, and was running at the rate of 15 or 20 miles an hour. And it is held:</p> <p>a — That the plaintiff was not negligent in driving upon the track, she having the same right to travel upon it as the railway company, save that it was her duty, when she met a car, to get off, and give the car precedence.</p> <p>b — That the right of the railway in the street is only an easement to use the highway in common with the public, and it has no exclusive right of travel upon its track, and is bound to use the same care in preventing a collision as is the driver of a wagon or other vehicle.</p> <p>c — That the question whether, being on the track, the plaintiff and her husband used reasonable diligence and ordinary care to prevent collision, was one for the determination of the jury; citing Little v. Railway Co., 78 Mich, 205.</p> <p>d — That it was admissible for the plaintiff to show that the public were in the habit of driving and traveling on the railway track, as bearing upon the question of defendant’s negligence in running a car without a head-light, or any light at all, upon the street after dark.</p> <p>e — That a street-car ought to be lighted in the night-time, so that its approach can be seen by other travelers; and between twilight and dark, if not lighted, it ought to be run so slowly as to avoid collision, or else give by some signal warning of its approach.</p> <p>/ — That the question of defendant’s negligence under the testimony was for the jury.</p>

<p>Will — Undue influence.</p> <p>1. Undue influence cannot be predicated upon opportunity alone, nor upon conduct in the line of filial duty, nor upon a disposition of property not in accordance with the statute of descent.</p> <p>2. When the person of the testator has been by common consent committed to the care of him who is charged with the exertion of undue influence, there is no presumption that it has been exercised.</p> <p>3. As to what influence will vitiate a will, see Maynard v. Vinton, 59 Mich. 139, 153, cited with approval by the Court.</p> <p>4. The court properly withdrew the question of undue influence from the consideration of the jury in this case.</p>

<p>Conditional sale — Evidence—Replevin—Fixtures—Judgment— Appeal.</p> <p>1. Plaintiff agreed to sell the undivided half of a saw and shingle mill, and it was stipulated in the contract’ that a failure to pay the purchase price should avoid the contract. The purchaser went into possession with the plaintiff, and then sold her interest in the property, and her vendee purchased plaintiff’s remaining interest upon a contract which reserved the title to the plaintiff until the purchase price was paid, and went into sole possession. After the partial destruction of the property by fire, the second vendee sold a portion of the mill machinery to the defendants, who affixed it to their mill. Plaintiff replevied the machinery, and on the trial offered the two agreements in evidence, and they were received, in connection with proof that a considerable sum was due and unpaid on each when the suit was commenced. Defendants’ counsel objected to the contracts, on the ground that they did not tend to show title in the plaintiff, which objection is held untenable. And it is further held:</p> <p>a — An agreement for the sale of personal property which contains a stipulation that, in case default is made in the payment of the purchase price as stipulated, the agreement shall be null and void, passes no title to the purchaser until the purchase price is paid.1</p> <p>b — The title to personal property does not pass to a purchaser, under an agreement retaining it in the vendor until the-purchase price is paid, until such payment is made.1</p> <p>3. Machinery in the possession of a vendee under a contract for its purchase, which retains the title in the vendor until the machinery is paid for, cannot be attached to a mill by a purchaser from the vendee, before such payment, so as to make it a part of the realty.</p> <p>3. In replevin for a portion of certain property sold by the plaintiff under a contract retaining the title in him until the purchase price was paid, which portion the defendant had purchased of the vendee, the plaintiff may show that the value of the whole property does not exceed the amount remaining unpaid on the original contract at the time the suit, was commenced.</p> <p>4. An officer’s return to a writ of replevin showed that he had delivered the property (mill machinery) to the plaintiff, but it appeared on the trial that by the agreement of the parties the machinery was to remain in the mill during the pendency of the suit, until its value was determined. The case was tried before the court, and a judgment rendered in favor of the plaintiff for the value of the property. A bill of exceptions ' was settled, but no findings of fact or law were asked for or made. The defendant assigned as error the form of the judgment, claiming that it should have been that the property be replevied and delivered to the plaintiff, and that, in default thereof, plaintiff should recover its value. The attention of the trial court was not called to the alleged error, and the judgment is therefore affirmed.</p>

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

<p>Schools and school-districts — Record of meeting — Parol evidence— Settlement with defaulting official.</p> <p>1. An unsigned record of what purports to be the proceedings had at an annual school-meeting, found in the school-district record, will be presumed to be the record of such meeting.</p> <p>.2. Where the record of an annual school-meeting fails to show that an adjournment was had, but upon a fly-leaf there appears a record of the proceedings of a subsequent meeting, signed by the director, which purports to have been held pursuant to adjournment, and no record appears of any meeting between the two dates, and none is shown to have been held, it is competent to show by parol, in aid of the record, that the annual meeting was adjourned to the date of such subsequent meeting.</p> <p>3. It is competent for the electors of a school-district, at a regular meeting, to authorize a settlement with a defaulting-assessor, and to direct that the full amount due may be paid partly in money and partly in orders of the township, the payment of which is guaranteed by-a responsible party.</p>

Mandamus. Belator applied for mandamus to compel respondent to audit .and pay his bill for conveying a female prisoner to the Detroit House of Correction. The facts are stated in the opinion.

Exceptions before judgment from Newaygo. (Palmer, J.) Eespondents Ellsworth and Dixon were convicted of an assault with intent to do great bodily harm, less than the crime of murder, and the respondent Oraig, of assault and battery, upon a joint trial. The facts are stated in the opinion.

(Beach, J.) Respondent was convicted of manslaughter, and sentenced to the State prison for ten years. The facts are stated in the opinion.

Exceptions before judgment from Muskegon. (Dicker-man, J.) Despondent was convicted of embezzlement. The facts are stated in the opinion.

<p>Penalty — Parties to action — Physicians—Failure to report disease —Evidence.</p> <p>1. How. Stat. § 8442, makes it the duty of the prosecuting attorney of a county to prosecute not only when notified by the supervisor of a township that a penalty or forfeiture has been incurred within his township which cannot be recovered before a justice of the peace, but in all other cases where he shall know, or have good reason to believe, that a penalty has been incurred; and he, as well as the supervisor, is the agent pointed out by the statute to represent the people in all such prosecutions.</p> <p>2. A suit commenced against a physician in justice’s court to recover the penalty imposed by Act No. 11, § 44, Laws of 1883 (3 How. Stat. § 1676), for neglecting to give notice to the proper health officer of dangerous diseases, etc., maybe prosecuted by the prosecuting attorney; and an objection to the introduction of any evidence under a declaration which states that the prosecuting attorney, for and on behalf of the people of the State of Michigan, complains of the defendant, etc., as incompetent, irrelevant, and immaterial, because the statute provides that the action shall be brought in the name of the people of the State of Michigan, is untenable.</p> <p>3. The existence of diphtheria is sufficiently shown, in a prosecution to recover the statutory penalty imposed upon physicians for failing to report its existence, by the physician’s admission that certain children he was attending had diphtheria, and the testimony of the fathers of the children to such attendance,. and that the defendant, as well as the witnesses, who described the disease as attacking the throat, pronounced it diphtheria.</p> <p>4. A delay of eight days by a physician in reporting a case of diphtheria to the proper health officer is unreasonable.</p>

Mandamus. Eelator applied for mandamus to compel the respondent to file a copy of a resolution extending the term of its corporate existence. The facts are stated in the opinion.

<p>Error to Saginaw. (Edget, J.)</p> <p>Negligence case. Plaintiff brings 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 are stated in the opinion.</p>

<p>Appeal from Ingham. (Person, J.)</p> <p>Bill for specific performance of contract. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Infancy — Sale to minor — Necessaries—Fraud—Rescission—Contract . —Pleading.</p> <p>1. Where, in a suit to recover for labor for which the plaintiff claimed he was to receive $12 per month, the defendant in his plea sets out the contract as a positive one to pay that price, and subsequently tenders plaintiff payment at that rate, the jury are properly instructed that that was the rate agreed upon.</p> <p>•2. While, ordinarily, representations as to value are not evidence of fraud, yet in a case where an adult is dealing with an infant, who is presumed by law to be unfamiliar with the value of a watch which he is solicited to purchase, it is proper to submit to the jury the question whether good faith was observed towards him.</p> <p>3. Whether a watch and chain is a necessity to an infant of the age of 18 years, so as to bind him by an executed contract for their purchase at the price of $20, was submitted to the jury in this case, who found in the negative.</p>

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

(Gage, J.) Bill to declare certain chattel mortgages an assignment for the benefit of creditors, and void for preferences, etc. Defendants appeal. The facts are stated in the opinion.

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

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

<p>Landlord and tenant — Lease—Estoppel—Evidence—Impeachment of witness — Directing verdict.</p> <p>1. A lessor who has received the full consideration, for his lease cannot question the right of his lessee to hold.</p> <p>2. In an action of ejectment against a school-district to recover half an acre of land occupied as a school-house site, the title of the plaintiff was admitted, subject to the rights of the defendant as lessee of a former owner, through whom the plaintiff traced his title. The lease was lost, and the defendant was allowed to prove its contents by parol, and for that purpose swore three witnesses, one of whom was the lessor, who testified to the execution of the lease for a term of 50 years, or so long as the land was used for school purposes. Plaintiff introduced no evidence in regard to the lease, except to show that the lessor had stated that the district had no lease or deed, and, if a lease was given, it was not for over 25 years, and that he did not know that he ever gave a lease. The testimony of the remaining witnesses was undisputed, and there was no dispute but that the defendant took possession under a lease, and paid the lessor $15 as a consideration for it, and had held undisputed possession for over 30 years. A tenancy was admitted by the plaintiff, who had given notice to terminate it. And it is held that—</p> <p>a — The testimony to the contradictory statements of the lessor could only be used to impeach him, he not being a party to the suit, and such statements not being binding on the party in interest; citing Howards v. Patrick, 38 Mich. 804; Brown v. Dean, 52 Id. 269; Catlin v. Railroad Co., 66 Id. 358.</p> <p>b — Had the case -rested upon the lessor’s testimony alone, the question of the execution of a lease, and its term, should have been submitted to the jury; but, as the testimony of the other witnesses was positive and unimpeached, a verdict should have been directed for the defendant.</p>

<p>Order — Conditional acceptance — Abandonment of contract by drawer — Notice to payee.</p> <p>1. Defendant accepted an order in favor of the plaintiffs, drawn on him by contractors for sinking a salt well, and payable when a certain depth was reached, subject, however, to the conditions of the contract. The contractors being unable to complete the contract, defendant assumed its performance, after which the contractors had nothing to do with the job except to oversee it, and defendant furnished everything, and paid the men. And it is held that the defendant did not, by such conditional acceptance, 'obligate himself to notify plaintiffs of any breach of the contract by the contractors, and if he was compelled, as the only means of securing the completion of the work, to take upon himself the burden of paying the men and for the materials, he had the right to deduct these payments from the contract price, whether he gave such notice or not, and without reference to whether the transaction was called an “abandonment” of the contract or not.</p> <p>2. About the time that defendant assumed the completion of the work, the contractors gave him a chattel mortgage on their tools, etc., which recited an indebtedness of about $800 for cash and materials supplied and wages assumed by the defendant, and was conditioned for the sinking of the well in a manner satisfactory to the defendant, and for the payment of all moneys necessarily paid out by him on the job above the contract price. The mortgage had been foreclosed by the defendant when plaintiffs sued him on his acceptance of said order. And it is held that, as the plaintiffs were interested with the defendant in the performance of the contract, the mortgage inured to the benefit of both parties; and if it should appear on a second trial that the contract price, with the sum realized on the foreclosure, exceeds the amount paid by defendant before he was compelled to assume the work, and the cost to him thereafter, the Court see no obstacle to a recovery to that extent.</p>

Mandamus. Relator applied for mandamus to compel respondents to set aside his default entered for want of a replication to a notice of matter of defense filed under Circuit 'Court Rule No. 106. The facts are stated in the ■opinion.

<p>Appeal from St. Clair. (Canfield, J.)</p> <p>Petition for sale of lands delinquent for taxes under Act No. 195, Laws of 1889. Contestant appeals. Amount of increase of taxes, caused by an intentional under-assessment of property, deducted. The facts are stated, in the opinion.</p>

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

Proceedings to condemn lands for railroad' right of way in street. Kespondents appeal from the confirmation of award of jury. Order of confirmation vacated, and report set aside as to appellants, and case referred to same jury, with leave to amend petition, etc. The facts are stated in the opinion.

<p>Set-off — Case made — Exceptions to findings — Assignments of error.</p> <p>1. Where judgment is rendered in favor of a defendant because the plaintiff’s demand is not due, the defendant is not entitled to judgment under his claim of set-off.</p> <p>S. Where no amendments are proposed to the findings of fact, nor exceptions taken to the findings as made, the only assignment of error open to the appellant, on a case made containing nothing but the findings and judgment, is that the findings do not support the judgment.</p>

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

<p>Exceptions before judgment from Iosco. (Simpson, J.)</p> <p>Respondent was convicted of burglary.</p> <p>The facts are stated in the opinion.</p>

<p>Pleading — Misjoinder of counts — Tenant at will — Notice to quit.</p> <p>1. A count in trover cannot be joined with one in- trespass, nor with one in assumpsit.</p> <p>2. A-count in a declaration which recites that the plaintiff was a lessee of the defendants, and in the possession of a certain room, and that it was defendants’ duty to permit the plaintiff to occupy the room as their tenant, and that, in disregard of this duty, the defendants on a certain day fastened up the door of the room, and thereafter prevented plaintiff from entering it, if regarded as a count in tort, must be treated as setting up a trespass, the gist of the charge being the forcible eviction of plaintiff.</p> <p>6. What was said in Bellant v. Brown, 78 Mich, 297, relative to the joinder of trespass and case, must be construed as limited to cases in which either form of action is permissible.</p> <p>4. A letting for an indefinite period by the month creates a tenancy at will, and the tenant is entitled to one month’s notice to quit in order to terminate such tenancy.</p>

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

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

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

<p>Ejectment — Statute of limitations — Adverse possession.</p> <p>1. Where the defense of adverse possession in an action of ejectment is not conclusively established by the evidence, the question is properly left to the jury to determine.</p> <p>2, A plaintiff in ejectment showed title in himself through a chain of conveyances from the United ■ States, and the 'defendants gave evidence tending to show an adverse possession for more than 20 years under a tax deed, which was invalidated ' by evidence offered by the plaintiff on rebuttal. The defendants objected to the evidence of the invalidity of the tax deed as incompetent, insisting that 24 years had elapsed since the right to bring an action of ejectment had accrued, and that such right of action was barred by the statute; that the time within which the plaintiff would have been permitted to bring an action of ejectment, and show the invalidity of the tax proceedings, had long since elapsed, and that the fact whether they were regular or irregular was immaterial. And it is held that the statute places no limitation upon actions of ejectment, and that the plaintiff was under no more obligation to bring such action within 20 years from the time the tax deed was recorded than were the defendants to file a bill in equity to quiet the tax title.</p>

<p>Error to St. Clair. (Canfield, J.)</p> <p>Trover. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 81 Mich. 182.</p>

Mandamus. Belator applied for mandamus to compel the cashier of a bank to pay taxes assessed against certain of its stockholders. The facts are stated in the opinion.

<p>Railroad companies — Injury at crossing — Contributory negligence.</p> <p>1. A person about to cross a railroad track is bound to recognize the danger, and make use of the senses of hearing and sight, and to ascertain, before attempting to cross, whether a train is in dangerous proximity. If he neglects to do this, and ventures blindly upon the track, it must be at his own risk, and such conduct should be pronounced negligence by the courts, as matter of law; citing Railroad Co. v. Miller, 25 Mich. 274; Haas v. Railroad Co., 47 Id. 401; Pzolla v. Railroad Co., 54 Id. 273; Rhoades v. Railway Co., 58 Id. 263; Potter v. Railroad Co., 62 Id. 22; Mynning v. Railroad Co., 64 Id. 98; Matta v. Railway Co., 69 Id. 109; Freeman v. Railway Co., 74 Id. 86; Gebhard v. Railway Co., 79 Id. 586; Underhill v. Railway Co., 81 Id. 43; Guta v. Railway Co., Id. 291; Brady v. Railroad Co., Id. 616; Apsey v. Railroad Co., 83 Id. 432.</p> <p>2. Plaintiff’s decedent is held to have been guilty of such negligence in driving upon defendant’s track as to preclude a recovery.</p> <p>[The authorities are fully reviewed in the opinions.— Reporter.]</p>

<p>Error to Muskegon. (Dickerman, J.)</p> <p>Garnishment proceeding. Garnishee defendant brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Exemptions — Sewing-machine—Bights of wife — Conditional sale.</p> <p>1. A sewing-machine, though exempt from levy and sale on execution. under How. Stat. § 7717, is not covered by the ninth subdivision of How. Stat. § 7686, which declares that any chattel mortgage or bill of sale, executed by a husband, of any of the exempt property described in said section 7686, except subdivision .8, shall be void unless signed by the wife.</p> <p>2. How. Stat. § 6297, which authorizes a married woman to sue in her own name for exempt property seized on execution against her husband, only applies where the property is taken ■ by some process adversary to the husband.</p> <p>S. Defendant’s husband purchased a sewing-machine of one of plaintiff’s agents, who received an old machine in part payment, and accepted the husband’s note for the remainder of the purchase price, subject to a condition stated in the note that it was received subject to the approval of the plaintiff. During the summer following the sale plaintiff’s agents visited defendant’s house several times, and instructed her in the use ' of the machine. No notice of disapproval was given until abou’t seven months after the sale, when plaintiff tendered to the husband his note, but not the old machine. And it is held that the delay was unreasonable, and that the title to the machine passed to the purchaser.</p>

Mandamus. Relator applied for mandamus to compel respondent to permit him to inspect, examine, and copy from the State tax land book in respondent’s office, and to issue deeds to relator of certain tax lands. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondent-to observe the order of the common council for the-removal of the projecting ends of the ties upon which its tracks are laid over 2,400 feet of its road. The' facts, are stated in the opinion.

<p>Appeal from Houghton. (Williams, J., presiding).</p> <p>Submitted on briefs February 11, 1892.</p> <p>Proceeding to enforce a mechanic’s lien. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>