Volume 91 — Michigan Reports

<p>Appeal from Charlevoix. (Ramsdell, J.)</p> <p>Bill to foreclose a mortgage. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relators applied for mandamus to compel respondent to settle a bill of exceptions. The facts are stated in thé opinion.

Clair. (Canfield, J.) Appeal from the disallowance by commissioners of a claim against the estate of a deceased person. Claimant brings error from a judgment disallowing the claim. The facts are stated in the opinion.

<p>Replevin — Waiver of return — Judgment for value — Appeal.</p> <p>1. A plaintiff in replevin, who is shown to be a stranger to the-title, cannot complain of the entry of a judgment for the value-of the property in favor of the defendant, who was in lawful possession at the time of its seizure; citing Davidson v. Cunsolly, 1 Mich. 388; Bank v. Crowley, 24 Id. 492; Bteere v. Vanderberg, 90 Id. 187.</p> <p>3. The owner of a piano delivered it to a railway company for shipment, from whose possession it was taken by the original vendor under a writ of replevin, in which two former owners-were joined with the railway company as defendants. A verdict for the value of the piano was rendered in favor of' the defendants, which was assigned in open court to the railway company by its co-defendants, but the judgment was entered in form against the three defendants. And it is held that the error is not one which makes a new trial necessary or proper, and the judgment is reversed, and one entered in the Supreme Court in favor of the railway company, with costs of both courts.</p>

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

<p>Surveys — Monuments—Courses and distances — Location of section corner.</p> <p>1. The original monuments established by the government surveyor to mark section corners must control the courses and distances, indicated by the field-notes.</p> <p>2. The contest in this case was over the location of a section line. And it is held that there was some testimony to go to the-jury fixing the disputed section corner at the point claimed by the defendants, which testimony is set forth in the opinion.</p>

<p>Fire insurance — ■Waiver of forfeiture.</p> <p>The question whether the defendant had waived the forfeiture by-plaintiff of his insurance by reason of his non-payment of an assessment is held to have been properly submitted to the jury, who were instructed that if they found that defendant continued to treat plaintiff’s policy as in force subsequent to serving notice of the assessment, and up to the time of tbe fire, a period of about nine months, without objection or protest or notice of any claim of forfeiture, and by its conduct led the? plaintiff to believe that it considered the policy as in force, such conduct would be a waiver of any forfeiture or suspension of the policy, and the defendant would be liable for the loss.</p>

(Edget, J.) Bill to set aside a conveyance made in consideration of the care and support of complainants. Complainants .appeal. The facts are .stated in the opinion.

<p>Error to St. Joseph. (Loveridge, J.)</p> <p>Ejectment. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Agency — Sufficiency of proof.</p> <p>Plaintiff sued to recover the balance due on a contract for building a barn on defendant’s farm, made with her son, upon the theory that he was acting as her agent. The only testimony offered by the plaintiff to charge the defendant under the contract was that she owned the farm and the personal property thereon, boarded the men during the building of the barn, and urged plaintiff to hurry up the work, as they wanted to put hay in the barn; which is held no evidence that the contract was made for defendant by her son, which fact she and heison both expressly denied.</p>

(Palmer, J.) Case. Plaintiff brings error. The facts are-stated in the opinion. Ellsworth & Barden and W. D. Fuller, for appellant, contended for the doctrine of the opinion, citing the case there cited.

<p>Negligence — Bailroad companies — Construction of road-bed — Independent contractor — Pleading—Damages.</p> <p>1. In a suit by an administrator to recover damages for the negligent killing of the decedent, under How. Stat. § 8314, the plaintiff must allege and prove that some person has suffered some pecuniary injury by such death; citing Ilurst v. Bailway Co., 84 Mich. 539.</p> <p>2. Defendant, in building its road on its right of way near plaintiff’s house, raised an embankment 18 feet high, in order to cross another railroad at grade, thus leaving the house in an angle formed by the two embankments. A pond of water was formed, by reason of a heavy rain-storm, in another angle formed by the embankments, opposite the house, and a day or two afterwards plaintiff’s 8-year-old boy climbed over defendant’s embankment, fell into the water, and was drowned. The pool was not guarded in any way, and no means were provided to carry off the water if thus suddenly accumulated. An independent contractor was in possession of the work at the time of the accident, his contract not being compl-ted. And it is held that the defendant was not guilty of negligence.</p>

<p>Evidence — Loss of paper — Parol proof of contents — Trial—Conduct of circuit judge.</p> <p>1. The loss of a paper, which the witness says he left with another party, is not sufficiently shown to warrant parol proof of its contents, by his testifying that he has searched for and been unable to find the paper, but not stating in what particular place or places the search was made, or that he asked the custodian where the paper was, and no effort having been made to secure the testimony of the custodian, whose home was at the same town, in another state, as that of the witness. -</p> <p>"2. The action of the circuit judge in taking partial control of the examination of a witness, and finally abruptly dismissing him without the consent of counsel, is held to have been prejudicial error.</p>

Mandamus. Relator applied for mandamus to compel respondent to issue injunctions to restrain waste upon lands on which taxes are due and remain unpaid. The facts are stated in the opinion.

<p>Attachment — Defective affidavit — Amendment—General appearance■ —Waiver. ,</p> <p>1. There is no statute now in force permitting amendments to attachment affidavits, and such amendments have never been, deemed admissible under the statute of amendments (How. Stat. § 7631), which provides that “ the court in which any action shall be pending shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice.”</p> <p>2. The omission of the word “not” from the statutory averment that the defendant is a non-resident, and has not resided in this State for one month next preceding the date of the affidavit,, renders the affidavit a nullity.</p> <p>3. Where, after the denial of a motion to quash attachment proceedings in justice’s court because of a fatal defect in the affidavit, the defendant, who had appeared specially for the purposes of the motion, removes the case to the circuit court by special appeal, assigning as error such refusal, the entry by his attorney of his appearance in the circuit court will not be-treated as a submission to the jurisdiction of the court.</p>

Mandamus. Relator applied for mafidamus to compel the assessment of mortgages under the tax law of 1891. The facts are stated in the opinion.

Mandamus. Kelators applied for mandamus to compel the set-off of an execution, etc. The facts are stated in the> opinion.

Mandamus. Eelator applied for mandamus to compel respondent to set aside certain judgments. The facts are stated in the opinion.

(Chambers, J.) Respondents appeal from the determination of a jury in condemnation proceedings. The facts are stated in the opinion.

<p>Breach of contract — Recoupment—Loss of profits — Measure of damages.</p> <p>1. The prospective profits, arising from the use of a custom and manufacturing flouring-mill are too speculative to be shown as a measure of damages for the breach of a contract for furnishing machinery and repairing the mill within a specified time, and by reason of which breach the owner lost the use of the mill.</p> <p>'2. The measure of damages in such a case is the fair rental value of the mill during the time the owner is deprived of its use; overruling Allis v. McLean, 48 Mich. 428, in so far as it holds a contrary doctrine..</p> <p>3. The owner cannot recover the value of grain ground, and the loss arising from the manufacture of poor flour, during the time when he knew the mill was not in a condition to do good work, such grinding being done to test the mill; but he can recover the value of his own time lost, and the amount he was obliged to pay his employés while lying idle, by reason of the contractor’s default in performing.</p> <p>[The points of counsel and the authorities cited are •stated and reviewed in the opinion. — Eeporter.]</p>

Clair. (Canfield, J.) Bill to enjoin tbe prosecution of two suits at law. Defendants appeal. The facts are stated in the opinion.

<p>Executors and administrators — Will—Appointment of trustee— Accounting — Estoppel.</p> <p>A testator willed his entire property to a father and son in trust, the terms of which were fully set forth in the will, of which he appointed them joint executors. The will was probated on the petition of the son of the testator, and the father and son were appointed executors, and accepted and qualified as such, and took and retained possession of the property for about four years, when the son died, and the father remained in possession for about six months, when he resigned as executor, and an administrator was appointed, to /whom he paid- an amount agreed upon on a settlement had between them. During their joint possession the father and son proceeded with the execution of the trust as fully and. effectually as they could have done if they had not been executors. The son was the active manager of the trust property, and filed an account in the probate court about two years and a half before his death, which was never acted upon. The father filed an account in the name of himself and son after the son’s death, and about the time of his resignation, which was disallowed. On the petition oi the testator’s grandson, to whom the trust property was to be conveyed on his attaining his majority, a final accounting was had. with the administrator, and he was-discharged, and the property was turned over to the grandson, who afterwards filed a bill for an accounting with the father as surviving trustee, and on the hearing the father was-decreed to be a trustee, and an accounting was directed, and he was ordered to transfer the lands to the grandson by a proper conveyance. And in -affirming the decree the Court-hold:</p> <p>a — The will created the trust, appointed the trustees, and fixed their duties; and no action of any court was necessary to complete the trust in them.</p> <p>b — Equity will not permit the father to refuse an accounting as trustee because the same instrument which made him a trustee also made him an executor, in which latter capacity he neglected for several years to render an account, it being immaterial in which capacity he is held, as his liability is the-same; and, as his acts and conduct have been entirely consistent with his obligation as trustee, he cannot complain when hiseestui que trust calls him to an account in a court of equity.</p> <p>c — The settlement with and payment to the administrator is. no defense. It was the administrator’s duty to receive any and all property in the father’s hands belonging to the estate, but he could bind neither the complainant nor the estate by such settlement, the probate court alone having power to. allow the father’s account as executor and discharge his bond, and complainant alone could settle with him for his doings as .trustee</p> <p>d — The receipt of the property on the final settlement with the administrator did not estop the grandson from requiring an accounting by the father for the moneys and property that came into his hands, but he will be allowed on such accounting for all of the money and property turned over to the administrator, and for all which he expended for the benefit of the-grandson and the estate, and must account for all received by him, including rents and profits.</p>

<p>Mortgage — Foreclosure—Purchase by administrator — Eights of second mortgagee.</p> <p>A second mortgagee, -whose mortgage was not due, arranged with the first mortgagee to foreclose his mortgage, and agreed to pay a portion of the expenses of the foreclosure. The mortgagor-had conveyed a right of way for a railroad over the mortgaged premises after the execution of the mortgages, which were duly recorded. Pending the foreclosure, the second mortgagee died, and the suit was revived against his administrator, who-attended the foreclosure sale. The land was offered for sale in two parcels, in the inverse order of alienation, and the administrator bid in the whole premises, except the parcel sold to the railroad company, for the full amount due on the decree. Before the sale the solicitor for the administrator announced in the presence of the solicitor for the railroad company, who was present looking after its interests, that the administrator held a second mortgage upon both parcels. On the maturity of the second mortgage the administrator filed a bill to foreclose. it on the railroad right of way parcel. And in affirming a decree for the sale of this parcel to satisfy the second mortgage, the Court hold:</p> <p>a — In the absence of any agreement, the administrator was under no obligation to take care of or look after the interests of the railroad company, which was represented by its solicitor, who was apprised of- the situation, and could have bid upon the first parcel up to the amount of both mortgages, if the land was worth that sum, as now claimed, and thereby freed the parcel owned by the railroad company from the lien of both mortgages; and there was no legal or equitable obligation resting upon the administrator to bid updn both parcels, when he could protect himself by bidding upon one, it not appearing that he was conducting the sale, or that he had anything to do with the order of sale, or that he prevented the solicitor for the railroad company from bidding upon the first parcel.</p> <p>b — An administrator who bids in land at a foreclosure sale to protect the lien of a second mortgage held by the estate acquires the same title against third parties as any other purchaser, and the fact that the land may be or is treated as personal estate in the distribution of the estate does not affect his holding. He acquires the fee, and can dispose of it by deed, which will convey the same title as that of any other purchaser.</p> <p>c — As long as the holder of' a second mortgage sees land enough left from the sale under the first mortgage, he can, if he chooses, refrain from bidding on such sale, and rely for his security upon the unsold land, or he may bid in enough of the land to discharge the first mortgage, and enforce his security upon the remainder, if he is guilty of no deception or fraud in such purchase, especially when the owner of the remainder of the land is upon the ground, and is fully apprised of the situation, and in a condition to protect himself by also bidding upon the parcel or parcels sold.</p>

<p>Negligence — Evidence—Setting fires.</p> <p>1. Evidence that, after the destruction of plaintiff’s property by Are emanating, as he claimed, from a fire-pit in which defendant burned the refuse from his saw-mill, the defendant erected a high board fence around the pit, since which no fire has spread from the pit, is improperly admitted as tending to establish defendant’s negligence in not building the fence before-the destruction of plaintiff’s property.</p> <p>2. If the fire was caused by the sudden shifting of the wind, and' its increased violence, defendant was not liable for the consequences, it not appearing that he did not take the proper precautions to watch and guard the fire to prevent its escape, nor that such a wind was blowing as rendered it imprudent to-start the fire when started.</p>

(Daboll, J.) Bill for the specific performance of a verbal contract for the sale and conveyance of land. Complainant appeals. The facts are stated in the opinion.

<p>Fire insurance — Forfeiture—Waiver—Error without prejudice.</p> <p>1. Where, in a suit upon an ■ insurance policy, the testimony-offered to show a waiver by the company of an alleged forfeiture is undisputed, and open to but one inference, and that favorable to the claim of waiver, the jury should be-instructed that a waiver is shown as matter of law; citing Richards v. Insurance Co., 60 Mich. 427; Carpenter v. Insurance Co., 61 Id. 635; Marthinson v. Insurance Co , 64 Id. 372; Cobbs v. Fire Association, 68 Id. 465; Cleaver v. Insurance Co.,. 71 Id. 421.</p> <p>2. The failure of the court in such a case to state to the jury what facts would constitute a waiver, and permitting them to find-it as matter of fact from insufficient evidence, is non-preju— dicial error.</p> <p>8. The fact that a mutual fire insurance company defends against a claim for loss on the ground of a violation by the insured of certain by-laws of the company, the penalty for which does not forfeit the policy, but only the right to recover for a loss thereunder, is not inconsistent with the action of the board of directors in treating the policy as in force by assessing it after such loss.</p> <p>4. Where an insurance company, with full knowledge of the facts. afterwards relied upon in support of its claims of forfeiture for the alleged false swearing of the insured in making out. proofs of loss, and for the violation of one of its by-laws, bases its refusal to pay the loss solely upon the failure of the insured to state in his application for insurance the true condition of the title to the property, after which he is. subjected to loss of time in trying to adjust the loss, and incurs the expense of bringing suit for its recovery, the company is estopped from asserting such claims of forféiture as a defense in said suit; citing Castner v. Insurance Co., 46 Mich. 15,. 50 Id. 273; Richards v. Insurance Co., 60 Id. 420; Cleaver v. Insurance Co., 71 Id. 421.</p> <p>5. A mutual fire insurance company may, in this State, waive a forfeiture of its policy if its assumed action is taken by those authorized to act for it, and with full knowledge of the facts;. citing Castner v. Insurance Co., 46 Mich. 15; Olmstead v. Insurance Co,, 50 Id. 200; Planing-Mill Co. v. Insurance Co., 72 Id. 654.</p>

<p>Chattel mortgage — Trover—Fraudulent representations — Estoppel— Evidence.</p> <p>1. False representations made by a creditor holding an unrecorded chattel mortgage as to the financial standing of his debtor, in answer to a letter of inquiry from a merchant from whom the debtor is seeking to purchase goods on credit, to induce the extending of such credit, will estop the creditor from interposing a mortgage subsequently executed to him to prevent the collection of the debt contracted in reliance upon such representations; and the same rule applies to the concealment by the creditor of the debt, and of the place of residence of the' debtor (his place of business not being his real place of residence), if made for the purpose of inducing such credit.</p> <p>2. In such a case the inquirer should be permitted to state where he understood the debtor’s residence to be from the letter-written by the creditor in answer to his letter of inquiry.</p> <p>3. The testimony of a mortgagee that he left a copy of his mortgage with the township clerk for record, and paid him his fees, as he thinks, upon a certain day, cannot be considered by tire jury as evidence of the filing of the mortgage, in the absence of the copy with the filing upon it, or of some showing why it cannot be produced.</p>

<p>.Accident insurance — Death of insured — Action on policy — Pleading' —Parties.</p> <p>1. A wife, to whom the insurance provided for in a certificate issued to her husband was made payable, brought suit thereon as administratrix of her husband’s estate. Her right to recover was denied, and the circuit judge ruled that she could waive her right to the fund in favor of the estate, and that, as the full merits of the case had been tried, the defendant could not be injured by such recovery; which ruling is sustained, the case being governed by Peet v. Knights of Maccabees, 83 Mich. 92.</p> <p>2. While a more proper course might have been to permit an amendment of the declaration, still, under the authority of How. Stat. § 7636, the case may be treated as though the amendment had been made before judgment; citing Smith v. Pinney, 86 Mich. 484.</p> <p>3. An insurance company issued an open policy to a railway company, covering such of its officers and employés as should be scheduled, and pay the premiums provided for. The insurance was to be paid to the assured in trust, for the benefit, in case of the death of the employé, of his heirs or assigns. The railway company required its employés to contribute from their monthly earnings sufficient to cover the risks to their several lives, and on their making payment the insurance company issued certificates, in which it was certified that the person insured, naming him, was insured for •a specified sum, under the conditions and agreements of the policy issued to the railway company, thereinafter called the ‘ assured.’ In a suit by the administratrix of the estate of one of the employés on his certificate of insurance, the insurance company gave notice, under its plea of the general issue, that, if it ever executed the policy declared upon, it did so upon a -written application of the deceased, in which the applicant agreed that in case of his death the insurance should be payable to his wife, naming her. And it is held that the circuit judge was justified in treating the contract as one made between the insurance company and the deceased, and as providing that in case of death the loss should be payable to his wife.</p>

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

<p>Negligence — Question for jury — Pleading—Evidence—Trial-Misconduct of counsel.</p> <p>1. The evidence is held sufficiently conflicting to require the submission of the question of plaintiS’s contributory negligence to the jury.</p> <p>2. Uniting immaterial charges of negligence with those that are material and necessary in a declaration will not preclude a recovery, it being the duty of the trial court to eliminate the immaterial charges from the consideration of the jury, and limit their consideration to the other acts alleged, which, if found to exist, constitute negligence.</p> <p>3, Where, in a railroad negligence case, one of the acts of negligence alleged is permitting a building to remain near a crossing at the time of the accident, which allegation is not well founded, but the jury are not instructed to that effect, it is error to admit evidence of the removal of the building by the railroad company after the accident.</p> <p>4. Counsel for plaintiff in a railroad negligence case, on the refusal of the court to permit certain cross-examination of one of the defendant’s witnesses, remarked that the attorneys on the other side were afraid that the witness would tell. And it is held that the natural tendency of the language used was to increase in the minds of the jurors a prejudice which common experience shows is very apt to exist, and that trial courts should set aside verdicts where such means have been resorted to.</p>

Mandamus. Relator applied for mandamus to compel the respondent to approve a paving contract. The facts are stated in the opinion.

<p>Intoxicating liquors — Civil damage act — Action by parent— Pleading.</p> <p>1. The language of section 20 of Act No. 313, Laws of 1887, which gives a right of action to every wife, child, parent, guardian, husband, or other person who shall be injured in person or property or means of support or otherwise by any intoxicated person, or by reason of the intoxication of any person, etc., is broad enough to include the mother of an adult son, with whom she lived, and who has voluntarily supported her, which support is cut off by reason of his death.</p> <p>2. Aid voluntarily furnished a mother by an adult son out óf a sense of filial duty is as much her “ means of support,” within the meaning of the section cited, as it would be if furnished through fear of an action ■ by the superintendents of the poor of the county under the statute.</p> <p>8. In a suit by a mother against a saloon-keeper to recover damages for injury to her means of support caused by the death of an adult son, to whom the defendant had sold liquor contrary to law, the declaration averred that for 26 years the plaintiff had been living with the son, and during that time had obtained and received her support from him, of the value of, to wit, $500 per year; and that the defendant, unjustly and wrongfully intending to injure the plaintiff, and to deprive her of her means of support so by her received, and to have been received, of and from her said son, committed the acts complained of as alleged, and, by means of the alleged unlawful sales of liquor, contributed to the drunkenness of the son, and to the loss by plaintiff of her means of support by her to have been received but for the intoxication of the son; and concluded with a general averment of damages. And it is held that the averments are sufficiently definite to show a loss by the plaintiff resulting from the wrongful act of the defendant.</p> <p>4. The declaration averred that the son, while drunk and intoxicated as aforesaid, by reason thereof, and because he was intoxicated, while attempting to cross a certain lake in a skiff or boat, was drowned, and then and there died, and that his death would not have happened if he had not become intoxicated upon the liquor so as aforesaid sold, given, furnished, and delivered to him by the defendant. And it is held that by said averments it is made certain to a common intent that the son met .his death by reason of falling into the lake named from a skiff and drowning, and that his intoxication produced this result; and that certainty to a common intent is sufficient; citing Merltie v. Bennington Township, 68 Mich. 141; Weiss v. Whittemore, 28 Id. 366; Truesdale v. Hazzard, 2 Id. 344.</p>

(Moore, J.) Bill to charge the estate of infants with necessaries furnished the executrix of their father’s will, etc. Defendants appeal. The facts are stated in the opinion.

Mandamus. Delator applied for mandamus to compel the approval of a paving contract, and the appointment of an inspector. The facts are stated in the opinion.

<p>Appeal from Allegan. (Arnold, J.)</p> <p>Bill for divorce. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Reformation of conveyance — Good-faith purchaser — Notice.</p> <p>In this case a decree reforming a mortgage, from which a parcel of land was omitted by mistake, and for its foreclosure as reformed, is affirmed, it appearing to the Court that the second mortgagee was not a good-faith purchaser.</p>

Quo warranto. Information in the nature of quo warranto to test the right of respondent to hold the office of judge of probate of Montcalm county. 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.

Clair. (Canfield, J.) Petition for order for abandonment of a portion of a railroad, under Act No. 275, Laws of 1887. Petitioner appeals. The-facts are stated in the opinion.

<p>Railroad companies — Injury to infant — Action by parent — Estoppel —Contributory negligence.</p> <p>1. A recovery by a minor son, in a negligence case prosecuted by his father as his next friend, for the value of the loss of his services during minority, which is insisted upon by the father as an element of the son’s damages, is a bar to a recovery by the father for the loss of such services in a suit thereafter brought in his own name.</p> <p>2. The question of the contributory negligence of plaintiff and his wife in permitting their son to make a play-ground of defendant’s tracks and yards is held to have been a question of fact for the jury.</p>

<p>Error to Grand Traverse. (Ramsdell, J.)</p> <p>Assumpsit. Defendant brings error'.</p> <p>The facts are stated in the opinion.</p>

(Hooker, J.) Bill to compel the release of a portion of mortgaged premises, and to recover the statutory penalty of $100. Complainant appeals. The facts are stated in the opinion.

<p>Principal and agent — Trustee—Accounting—Interest—Settlement.</p> <p>Defendant paid off certain 10 per cent, mortgages on plaintiff’s farm, and was to receive 8 per cent, interest on the amount paid. He also operated the farm for several years as plaintiff’s general agent, and received all of the money derived from the proceeds of the farm and from its sale, and paid to plaintiff, from time to time, such sums as she desired for her maintenance, and for the purchase of another farm; and, in a suit brought by her to recover the balance claimed to be due her from the defendant, he claimed that he was to have one-half of what he saved out of the farm by his management, while plaintiff claimed that his compensation was to be the difference between 6 and 8 per cent, interest, at which latter rate he claimed to be able to secure the money to pay off the mortgages. Defendant also claimed that a settlement had been had of all matters in dispute, which plaintiff denied. Defendant in his account did not credit plaintiff with any interest. The court instructed the jury on the question of interest and settlement—</p> <p>a — That, in the absence of any agreement to the contrary, it was the duty of the defendant to apply the money he received on his claim against the plaintiff, which bore 8 per cent, interest, and that when that was paid, if defendant used plaintiff’s money in his business, or in any way, he became liable to pay her interest at 7 per cent, until the law of 1887 reducing interest to 6 per cent, took effect, after which he was liable for the lower rate per cent., and that this was true whether his or her theory as to his compensation was correct.</p> <p>I — That the burden was upon the defendant to prove that there-had been a “ fair and full settlement.”</p> <p>Which instructions are sustained.</p>

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

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

<p>Lien — Contract—Manufacture of salt — Delivery.</p> <p>A contractor agreed with a salt and lumber company to manufacture and deliver on the company’s docks a quantity of salt at a certain price per barrel, payable on the 20th day of each month on the amount manufactured and delivered during the preceding month. He was to be responsible for the salt until it was delivered to the boats or vessels from the docks, danger of fire or other calamity excepted, and was to count the barrels, and deliver the salt only upon the written order of the company. During the performance of the contract the company gave a chattel mortgage on all of its personal property, which was put in process of foreclosure, and receivers were appointed, who took possession of several thousand barrels of salt, manufactured by the contractor and then in the salt block, on the platform, and on the docks, and had advertised it for sale, when the contractor filed a petition in the foreclosure suit, praying that he be decreed to have a lien on the salt for the balance due him on the contract. And in affirming a decree in his favor it is held:</p> <p>a — That the contractor had not parted with his possession of the salt.</p> <p>b — That he was entitled to monthly payments on all salt stored on the docks, irrespective of sales made or delivery to the boats; and that there is nothing in the contract inconsistent with his right to require payment before the salt was delivered from the docks.</p>

(Haire, J.) Garnishment proceedings. Defendant brings error from a money judgment entered against it as a claimant summoned under Act No. 175, Laws of 1885. The facts are stated in the opinion.

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

<p>Error to Delta. (Stone, J.)</p> <p>Trespass. Defendant 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>Mortgage — Absolute conveyance — Accounting.</p> <p>On a review of the evidence, the Court find that the deed ex •- cuted by complainants to defendant William E. DeGolia, ar d which complainants seek to set aside, was actually delivered, and that it was given as security, and must be treated ai ü deemed a mortgage upon the premises therein described, ai ,1 an account is stated between the parties. No questions of la w are involved.</p>

(Newton, J.) Negligence case. Defendant brings error from order ■overruling demurrer. The facts are stated in the opinion.

Mandamus. Belator applied for mandamus to compel respondent to remove its name from the assessment roll. The facts are .stated in the opinion.

(Peck, J.) Bill to redeem. Complainants appeal from a decree fixing the amount due to the defendant on an accounting. The facts are stated in the opinion.

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill to set aside certain deeds. Defendant appeals.</p>

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

<p>Street railways — Injury to passenger — Instructions—Trial—Remarks of counsel.</p> <p>1. The charge to the jury is held not to be open to the objections made by defendant’s counsel, and to have fairly submitted the contention of the parties.</p> <p>2. Certain remarks of counsel are held to have been uncalled for; but in view of the failure of the opposing counsel to call the attention of the court to the effect which they were intended to have upon the jury, with a request that they be cautioned against allowing the remarks to influence their verdict, and of the fact, as shown by the record, that the remarks seem to have passed entirely from the minds of the jury, the making of the same is held to have been non-prejudicial error.</p>

(Kinne, J.) Bill for an accounting. Complainant appeals. Decree reversed, and case remanded, with leave to answer. The facts are stated in the opinion.

<p>Conditional sale — Fixtures.</p> <p>The owner of an undivided interest in a farm purchased a portable saw-mill. The vendor retained the title and right of possession until the mill was paid for, but gave the vendee permission to take and use the mill in the township where his farm was situated, and in adjacent townships, so long as he took reasonable care of it, and was not in default in any of the payments provided for in the contract. The vendee made the first payment, and set up the mill on his farm, the boiler being bricked in and arched up, and the engine set upon brick-work and bolted to the foundation, and both being roofed over, while the saw-mill and carriage were uncovered. He afterwards conveyed the farm by quitclaim deed, and in an action of trover, brought by the vendor against the grantee on refusal to pay the remainder of the purchase price, a verdict was directed in favor of the plaintiff, which is affirmed; the case being ruled by Adams v. Lee, 31 Mich. 440, and Robertson v. Corsett, 39 Id. 777.</p>

<p>Trover — Pleading—Chattel mortgage — Assignment for benefit of creditors,</p> <p>1. A declaration in trover by an assignee need not aver the assignment to him of the right of action to enforce which the suit is brought; citing Harvey v. McAdams, 32 Mich. 472; Myres v. Yaple, 60 Id. 339; Williams v. Paper, 67 Id. 427; Hutchinson v. Whitmore, 90 Id. 255.</p> <p>2. Plaintiff, as assignee of the beneficiaries in a chattel mortgage, brought trover against the defendant, who, as sheriff, had sold the property on execution in favor of attaching creditors .of the mortgagor. There was no evidence tending to show any fraud in the making of the mortgage, or in others executed at about the same time, or that the debts secured were not bona fide obligations. And it is held that the giving of the mortgages did not constitute a fraudulent assignment, but was a legitimate transaction; the case being ruled by Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Id. 329; Fitzgerald v. McCandlish, Id. 400.</p>

<p>Municipal corporations — Defective highways — Pleading—Evidence.</p> <p>1. A declaration in a negligence case against a city, which avers that the defendant negligently permitted a building, which was being moved by third parties by permission of the council, to remain in a public street on a certain night, with a timber projecting from under it, and without any lights, danger signals, or other suitable warning to persons passing along the street, and that the plaintiff, without negligence on her part, while riding along the street, ran onto and against the building and timber, and was then and there thrown out of the buggy in which she was riding, and sustained certain specified injuries, — contains all of the averments necessary to bring the case within the statute.</p> <p>2. It appeared on the trial that the city council granted a license to move the building, subject to the supervision of the city marshal, and that on the afternoon of the day of the injury the marshal palled the attention of one of the licensees to the projecting timber, which was being used in moving the building, and said ¡to him that he thought it unsafe, but did nothing to prevent the building and timber from being left in the street overnight. And it is held that the city was responsible for the condition of the building while in the street; and that testimony as to the use of the timber in moving and its projection beyond the building, coupled with the fact that it was left in the street in the same condition as when being moved, was competent evidence against the city.</p> <p>3. It was the duty of the marshal to see that ordinary care, at least, was taken to warn passers-by of the presence of the building in the street, which duty, and the neglect of the marshal to perform it, was that of the city; and the city could not escape this duty because of the failure of electric light contractors to light a lamp near the building, which, if lighted, would probably have been a sufficient warning of the position and condition of the building in the street.</p>

<p>Appeal from Wayne. (Gartner, J.)</p> <p>Bill to foreclose a mortgage. Defendant Amelia Damm appeals.</p>

<p>Certiorari to review proceedings resulting in the dismissal of petitioner as patrolman.</p> <p>The facts are stated in. the opinion.</p>

(Daboll, J.) Bill to set aside certain instruments, by which complainant released his interest in the estate of his deceased daughter, on the ground of fraud. Defendant appeals. The facts are stated in the opinion.

(Lane, J.) Appeal of Eliza M. Phillips from order of circuit court affirming order of distribution of probate court. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the respondent to refrain from receiving and receipting for liquor taxes before the filing of the statutory bond. The facts are stated in the opinion.

Mandamus. Relators applied for mandamus to compel respondents to canvass certain election returns. The facts are stated in the opinion.

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

(Reilly, J.) Bill to enjoin the prosecution of proceedings to open a boulevard across complainant's tracks. Complainant appeals. The facts are stated in the opinion.

<p>Street railways — Contributory negligence — Question for jury— Argument of counsel — Judicial notice.</p> <p>1. The question of the contributory negligence of the driver of plaintiffs’ hearse in attempting to cross defendant’s track depended largely upon the proximity of defendant’s car to the crossing when first seen, or when by the exercise of due diligence it could have been seen, by the driver. The testimony was conflicting. And it is held that the court did not err in submitting the-question to the jury.</p> <p>2. The judgment in this case is reversed because of the reference by plaintiffs’ counsel in his argument to the jury, without provocation, to the defendant, as “the unfortunate city railway, whether driven through the streets by the mob, or driving along in its usual course,” in view of the great excitement and anger of the populace, which culminated in mob violence against the defendant but a few weeks before the trial, and of which the Court cannot fail to take judicial knowledge as a matter of current history.</p>

<p>Estates of deceased persons — Special administrator — Settlement of pending suit — Fraud.</p> <p>1. How. Stat. § 5851, as amended by Act No. 186, Laws of 1889, which provides that when by reason of delay in granting letters testamentary or of administration, or when from any other cause the judge of probate deems it expedient so to do, he may, after such notice as he may direct, appoint a special administrator to act until a general appointment is made, and that the order for such special appointment shall be non-appealable, indicates an intention on the part of the Legislature to give to the probate judge almost absolute discretion as to whether a special administrator shall be appointed in any case.</p> <p>2. After a widow had petitioned for the appointment of a general administrator of her husband’s estate, a proposition was made for the settlement of a suit commenced by him in his lifetime, which she deemed advantageous to the estate, and thereupon petitioned the probate court that her former application be dismissed, and that, pending the hearing of her petition for her own appointment as general administratrix, a special administrator be appointed, who should be authorized to make such settlement. And it is held that she had a right so to petition for her own appointment, and that the showing was sufficient to give the probate court jurisdiction to appoint a special administrator.</p> <p>8. There is no statute expressly or impliedly preventing an administrator from compromising or adjusting a claim of the estate against a third person without suit, or compromising or settling such claim when a suit is pending.</p> <p>4. At the time of the appointment of an administrator upon his petition as a creditor of the estate, the files of the probate court showed that a suit commenced by the deceased in his lifetime had been settled by a special administrator by order of the probate court. Subsequently distribution was made of the fund to the widow as such, as heir at law, and as guardian, the administrator interposing no objection, and the final account of the special administrator was allowed. The administrator suggested the death of the deceased, and his appointment, and filed a declaration in the suit, to which the settlement and satisfaction were pleaded, and upon the trial the administrator sought to attack the same as a fraud upon creditors. And it is held that that question could not be thus litigated: that the administrator must be presumed to have had notice of the probate proceedings; and that, if desirous of contesting the settlement upon the ground of fraud, it was his duty to have demanded the fund as general administrator, and, upon receiving it, to have tendered back the amount received from the defendant, and then proceeded with the suit, and shown fraud in the settlement, if any there was; citing Jewett v. Petit, 4 Mich. 508; Walsh v. Sisson, 49 Id. 423.</p>

<p>Error to Alcona. (Simpson, J.)</p> <p>Information in the nature of q%io warranto. Relator brings error.</p> <p>The facts are _ stated in the-opinion.</p>

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

<p>Set-Off — Sale— Warranty.</p> <p>In an action of assumpsit, the defendant may set off a claim for money paid the plaintiff for goods sold defendant under aexpress warranty of quality, which goods proved to be worthless; citing Petersen v. Lumber Co., 51 Mich. 86; Qutia Percha Manfg. Co. v. Wood, 84 Id. 452.</p>

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

<p>Fraudulent conveyances — Husband and wife.</p> <p>1. The desire of a wife to secure a bona fide debt due her from her husband is entirely justifiable, and a conveyance to her from him made for that purpose > will not be disturbed, in the absence of an intent on her part to assist him in defrauding his creditors, unless the consideration paid is so out of proportion to the value of the property as to render the conveyance a fraud in law.</p> <p>2. The record of such a conveyance is notice to those who after-wards give credit to the husband that the property conveyed does not constitute a part of his assets; and, while such record is no defense to the husband for false representations made by him, it is for the wife, in the absence of any act or statement on her part to mislead the creditor.</p>

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

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

<p>Appeal from Wayne. (Reilly, J.)</p> <p>Bill to construe a will. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Settlement — Receipts—Parol evidence.</p> <p>1. Settlements are favored by the law, and will not be set aside except for fraud, mistake, or duress.</p> <p>2. A settlement evidenced by the execution of mutual receipts of “ one dollar, in full for all debts, dues, and demands to this date,” except as to certain specified items, is conclusive, in th© absence of fraud or mistake, as- to all prior dealings between the parties not covered by the excepted items.</p>

(Cobb, J.) Bill to set aside a statutory foreclosure and foreclose the mortgage. Defendant King appeals. The facts are stated in the opinion.

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

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

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

<p>Payment — Mistake—Wages of employe — Estoppel.</p> <p>1. The theory upon which the law permits a recovery for money paid by mistake is that the same was received either by mistake or with knowledge of the overpayment, in which case the law raises an implied promise to repay.</p> <p>2. Where, by reason of the change of work of a mechanic to that requiring increased skill, he is promised an indefinite increase of wages, he is entitled to have- the new rate fixed, and .if he receives an increased sum for months, without fraud or deception on his part, the defendant cannot, on the ground of an alleged mistake in such payment, prevent a recovery by the mechanic at the increased rate.</p>

Mandamus. Delator applied for mandamus to compel the approval of a liquor bond. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel the assessment as real estate of the value of all real estate mortgages held by the Central Savings Bank of Detroit, and the .deduction of the same from the value of its capital stock, as determined for assessment purposes. The facts are stated in the opinion

Mandamus. Relator applied for mandamus to compel the assessment to it as real estate of the value of real-estate mortgages held by it, and the deduction of the same from the value of its capital stock, as determined for assessment purposes. The facts are stated in the opinion, and in Latham v. Board of Assessors, ante, 509.

Mandamus. Relator applied for mandamus to compel the assessment to the Detroit River Savings Bank, as real estate, of the value of the real-estate mortgages held by it, and the deduction of the same from the value of its capital stock, as determined for assessment purposes. The facts are stated in the opinion, and in Latham v. Board of Assessors, ante, 509.

Mandamus. Belator applied for mandamus to compel respondents to deduct from its net assets, as shown by the last report of the Commissioner of Insurance, the value of its real-estate mortgages, and that the remainder be determined as the amount of . its assessable personal property. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel the register of deeds to record a plat without the approval of the board of public works of the city of Detroit, or to compel. such approval, if necessary. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus compelling respondent to quash a capias for the re-arrest of relator,- and to allow the approval of a bail-bond by a police justice. The facts are stated in the opinion.

<p>Railroad companies — Injury to passenger — Dangerous premises.</p> <p>The duty of a railroad company to its passengers does not cease-the moment they alight from its trains, by its invitation, at a place selected by the company, but continues until the passengers have had a reasonable opportunity to leave the company’s premises in the direction ordinarily taken, which way of egress it is the duty of the company to make reasonably safe-for the passengers.</p>

<p>.Negligence — Accidental fires — Liability of mill-owner for failure to provide appliances for extinguishing — Evidence.</p> <p>1. Evidence that the engineer and fireman'of a mill were in the habit of using intoxicating liquor, and were sometimes seen under its influence, is inadmissible, in a negligence suit against their employer to recover damages sustained by reason of the accidental burning of the mill, in the absence of proof that such liquor habit, or occasional intoxication, had any bearing whatever upon the origin of. the fire, or in any way prevented its extinction.</p> <p>'3. If Are is liable to originate in a boiler and engine room, and the construction of the mill is such that .the surroundings are inflammable, so that the fire is liable to spread rapidly when once ignited, it is incumbent upon the person operating the mill to take care that the fire does not consume the mill, and spread to other property, by keeping on hand not only persons to watch the fire and keep it within, the furnace, but such appliances for extinguishing it, in case of its accidental escape and communication to the building, as an ordinarily prudent man would provide under like circumstances.</p> <p>•8. The liability of such person in such a case cannot be governed by the practice in other mills at other places, and necessarily • under different conditions and surroundings, and evidence of what was done in other mills in the way of providing such appliances is irrelevant.</p> <p>.4. It does not require any special knowledge, beyond that presumably open to a jury in a lumbering country, to determine what means would be safe or ordinarily prudent to be used to put out fires in an engine and boiler room or saw-mill, and expert. testimony is not admissible on that line of investigation.</p>

<p>Error to Alcona. (Simpson, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in McNally v. Colwell, ante, 527.</p>

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

<p>Error to Kent. (Adsit, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the' opinions.</p>

<p>Chattel mortgage — Seizure by mortgagee under insecurity clause— Tender.</p> <p>1. Where a mortgagor of chattels has difficulty in ascertaining under what claim the holders of the mortgages are holding the property, they having first caused it to be seized on execution, it is a question for the jury whether they are acting in good faith, and entitled, upon redemption, to exact their costs of seizure.</p> <p>2. There can be no doubt of the mortgagor’s right to redeem upon paying what the mortgagee would be entitled to realize and. retain on a sale of the property.</p> <p>8. Under a chattel mortgage which authorizes, in default of payment, the sale of the property at public or private sale to-satisfy the debt, interest, and reasonable expenses, 'and the-seizure of the property at any time when the mortgagee shall deem himself insecure, and its disposition “in the manner above-specified,” a tender of the principal, with interest to date and accrued costs, the mortgagee having seized the property under the insecurity clause, discharges the property from the lien of the mortgage, and renders its further detention illegal.</p>

<p>Negligence — Fellolv-servants,</p> <p>-A ship carpenter cannot recover for injuries received while working on a vessel by falling down a hatchway, which was left uncovered before the gangways were opened in the morning by his fellow-servants.</p>

<p>Estates of deceased persons — Advancements—Evidence.</p> <p>1. The subject of advancements is regulated by statute, and, if there are defects in the law, the Legislature alone can remedy them.</p> <p>2. An advancement must be evidenced in writing, and parol evidence of the declarations of the decedent prior to and after the execution of a deed, which he certifies in a separate paper to have given to a child as a portion of his patrimony, is-inadmissible, and such conveyance will be treated as an advancement, under How. Stat. §§ 5780, 5781.</p>

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

<p>Error to Wayne. (Brevoort, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>Thefaots are stated in the opinion, and in 73 Mich. 138.</p>

<p>Fire insurance — Appraisal—Action on policy.</p> <p>An insurance policy provided that, in case of disagreement as to the amount of a loss thereunder, it should be ascertained by appraisers, one of whom should be selected by the insured and one by the company and the third by the appraisers thus chosen, and that the amount of the loss should be payable 60 days after due notice, ascertainment, estimate, and satisfactory proof of the loss were received by the company. Fifty-seven days after proofs of loss were received, to which no objection had been made, and when it was too late to select arbitrators and secure an appraisal until after the period fixed for the payment of the loss, dating from the furnishing of proofs of loss, had expired, the company served on the insured a demand for an appraisal, which is held to have been served too late to suspend the right of action of the insured on the policy.</p>

<p>Negligence — Defective appliances — Fellow-servants.</p> <p>1. Plaintiff’s employer had contracted to fill defendant’s ice-house, and to that end to use a hoisting apparatus furnished by the defendant. Plaintiff was injured by an ice bucket falling upon him by reason of the breaking of a wire cable attached to the buckets. And it held that defendant’s duty was discharged when it furnished the hoisting apparatus in a. reasonably safe condition, and that it cannot be held responsible-for injuries to plaintiff resulting from the improper management of the apparatus by plaintiff’s fellow-servants.</p> <p>B. The fact that the relation of master and servant did not exist between the plaintiff and defendant will not prevent a recovery by the plaintiff.</p> <p>B. A danger which exists only because of defective appliances, of which an employé has no notice, cannot be said to be one of the risks assumed by the employé.</p> <p>■i. Where a corporation succeeds to the business of a copartnership, which it continues, and assumes the contracts and obligations of the partnership, it is liable to the same extent as the copartners would have been for a failure to furnish suitable machinery to a contractor under one of said firm contracts.</p>

<p>Seduction — Evidence—Pleading—Leading questions.</p> <p>1. In a civil suit for seduction, if the illicit intercourse has not been admitted by the defendant, it is competent for the plaintiff to show that the defendant proposed to the girl to procure an abortion, and that he consulted a druggist upon the same subject, as tending to show that he had sexual intercourse with her, and might be the cause of her pregnancy.</p> <p>3. If the defendant admits on his direct examination the fact of illicit intercourse, which he claims was secured without seductive solicitation on his part, further inquiry on his cross-examination as to the proposed abortion or his motive in consulting the druggist is immaterial to the issue in the case, and should be excluded.</p> <p>8. The following propositions are summarized from the opinion of Mr. Justice Grant, and are concurred in by Mr. Justice Montgomery, and not dissented from by the remaining Justices: '</p> <p>a — In a suit by a father for the seduction of his minor daughter, a declaration alleging that plaintiff complains of the defendant for and in behalf of his daughter, who is a minor, he being fully authorized by her so to do, clearly states that the action is brought for and in behalf of the daughter, and the allegation as to authority will be treated as surplusage.</p> <p>b — There are many cases in which counsel are justified in. the use of leading questions, and in determining their propriety the circuit judge must be largely governed by the intelligence, character, or timidity of the witness, and the case must be an extreme one to justify a reversal upon this ground, c — It is competent to show in a civil suit for seduction that the girl yielded to the defendant’s solicitations under promise of marriage, and also to show subsequent acts of illicit intercourse: People v, Clark, 38 Mich. 112, not applying to such a case.</p>

<p>Mortgage — Will—Contemporaneous agreements — Parol evidence.</p> <p>1. At the time of the execution of a mortgage conditioned in part for the payment of $4,500 to the legatees of the mortgagee, and as a part of the same transaction, the mortgagee made her will, by which she provided for the payment to certain legatees of legacies to the amount named in the mortgage, in ten equal annual payments after the death of herself and her husband, free from interest until due. And it is held that the mortgagee could not, by the revocation of the will, alter or annul her contract with the mortgagor as to the time of payment of the. $4,500, there having been no default on his part.</p> <p>2. No reformation of the mortgage is necessary in a suit brought by the executors of a later will to foreclose it, but the mortgagor may show the whole contract by proof of the execution of the first will.</p> <p>8. Where the executors fail to produce a will after due notice, it is provable by a copy, shown to be such by parol evidence» and the execution of the will may be shown by the same kind of evidence.</p>

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

<p>Error to Lenawee. (Loveridge, J.)</p> <p>Trespass. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Taxes — Lien on personal property — Purchasers—Replevin.</p> <p>1. One who purchased lumber prior to December 1, manufactured from logs assessed to the vendor under the tax law of 1889, took the lumber free from any lien for the taxes levied under such assessment, which did not attach to personal property until the first day of December in the year in which the assessment was made.</p> <p>2. The statute prohibiting replevin against a tax collector does not preclude such action by one who is a stranger to the tax, and not in privity with the person assessed.</p> <p>3. A purchaser of personal property before a lien for taxes assessed thereon has attached is not in privity with the vendor, so as to prevent his bringing an action of replevin against a tax collector who has seized the property in satisfaction of such taxes.</p>

<p>Slander — Evidence.</p> <p>The fact that a landlady has had trouble with a tenant about rent,, and said to her, “You will be sorry;” and the further fact, that a lady who lived with and worked for the landlady after-wards spoke slanderous words of the tenant in the presence- and hearing of the landlady, — will not justify a jury in finding.that the landlady was the author or instigator of the slanderous words so spoken, it appearing that she neither said nor did anything militating against the tenant, and the only evidence of her having heard the slanderous words, which she-denies, being the inference drawn from her presence within hearing distance.</p>

(Peck, J.) Respondent was convicted of assault with intent to do •great bodily harm less than the crime of murder, and sentenced to imprisonment in the State prison for one year. The facts are stated in the opinion.

(Chambers, J.) Eespondent was convicted of a crime against nature, under How. Stat. § 9292, and sentenced to imprisonment in the State prison for 10 years. The facts are stated in the opinion.

(Newton, J.) Respondent was convicted of the larceny of. a horse, and sentenced to imprisonment in the State House of Correction and Reformatory at Ionia for two years.. The facts are stated in the opinion.

<p>Application of securities — Principal and surety.</p> <p>Plaintiffs held several notes indorsed by one Van Wagner, one of which was signed by the defendant as surety, of which fact plaintiffs had notice. Van Wagner’s wife secured the payment of all of the-notes by a mortgage upon her land, without any designation by herself or husband as to the application of the proceeds of the security. Before the maturity of the-mortgage she deeded the land to the plaintiffs, who sold it, and applied the purchase money upon notes other than the one on which defendant was a surety, the amount of which notes-was largely in excess of the sum realized on the sale of the land. Plaintiffs afterwards sued defendant upon the note-signed by him as a surety, and a verdict was directed in defendant’s favor. And in reversing the judgment entered on. the verdict, it is held:</p> <p>a — The plaintiffs, receiving the mortgage in the manner stated, without any designation from the debtor of a particular-note upon which its proceeds should be applied, had the right to apply the same upon notes other than that upon which defendant was surety.</p> <p>b — In any case, Where the contract between the surety and the creditor provides for the retention of securities received either from the surety or the principal debtor, a departure from the terms of such contract will release the surety, whether shown to be to his detriment or not; but where the surety’s right depends upon the doctrine of subrogation, and the security is not received under any contract to which the surety is a party, the release of a lien upon property by which it is rendered unavailable to the payment of the debt furnishes a defense to the surety only to the extent of the value of the lien thus lost.</p> <p>e — As the plaintiffs had the right to apply the proceeds of the mortgage to the extinguishment of the debts represented by notes other than that signed by defendant as surety, amounting to more than the value of the security, the defendant could not have been damnified by the plaintiffs’ appropriation of the mortgaged property.</p>

<p>Railroad crossings — Electric railways — Trespass—Damages.</p> <p>1. The Commissioner of Railroads has no arbitrary power to fix 24 feet as the height at which the trolley wires of an electric street railway shall be strung and maintained above the track of a railroad company, in the absence of any showing that a less height is insufficient to prevent any danger to the employés of the railroad.</p> <p>2. The refusal of a railroad company to permit the trolley wires of an electric street railway which cross its track to be raised to a height sanctioned by the Commissioner of Railroads in other cities, and six inches higher than any bridge upon the railroad company’s line, which could have been done without cutting the wires or destroying property, and its cutting of the wires at a time when the street railway company was operating its entire road, is an inexcusable violation of the rights of the latter company, and justifies the recovery of all damages sustained by said company on account thereof.</p>

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

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