Volume 93 — Michigan Reports

Mandamus. Relator applied for mandamus to restrain the respondent from giving notice of the election of Senators under the apportionment act of 1891, and to compel him to give such notice under the act of 1885. The facts are stated in the ■opinions.

Exceptions before judgment from Kent. (Adsit, J.) Respondent was convicted of assault and battery. The facts are stated in the opinion.

Exceptions before judgment from Oceana. (Dickerman, J.) Respondent was convicted of engaging in the sale of liquors without paying the tax or giving the bond required by law. The facts are stated in the opinion.

(Grant, J.) Respondent was convicted'of manslaughter, and sentenced to the-Detroit House of Correction for 13 years. The facts are stated in the opinion.

(Palmer, J., presiding.) Respondent was convicted of uttering a forged note, and sentenced to imprisonment in the State House of Correction at Ionia for two years and six months. The facts are stated in the opinion.

Exceptions before judgment from Van Burén. (Buck, J.) Despondent was convicted of a violation of the local option law. The facts are stated in the opinion.

Exceptions before judgment from Lenawee. (Lane, J.) Eespondent was convicted of burning the vacant dwelling-house of another. The facts are stated in the opinion.

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

<p>Mortgage — Statute of limitations — Equity pleading.</p> <p>1. A complainant must so state his case in his bill that if it is admitted by the answer, or proved at the hearing, the court, can decree some relief upon it; citing Fox v. Pierce, 50 Mich. 504; Baent v. Kennicutt, 57 Id. 270.</p> <p>2. The defense of the statute of limitations can be raised as well under the answer of the defendant as by demurrer to the bill.</p> <p>8. The certificate of a mortgagor that at a certain date there is a certain amount due upon the mortgage will not operate to. renew the mortgage, or in any wise interrupt the running of the statute of limitations against it.</p>

(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 opinions,

(Buck, J.) Summary proceedings to recover possession of land. Defendant brings error. The facts are stated in-■the opinion, and in 81 Mich. 462.

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

<p>Payment — Duress—Illegal license tax.</p> <p>1. The question whether the facts shown, when undisputed, constitute an involuntary payment, is one of law, and therefore for the court to decide.</p> <p>2. Where for several years a saloon-keeper, who is neither aged, nor infirm in intellect, nor ignorant of the law or of his rights under it, pays a license tax imposed by the common council of a village under a void ordinance, on the threat of the village attorney of prosecution in case of non-payment, the payment is voluntary, and he cannot recover the money so paid; citing Bank v. Watkins, 21 Mich. 483; Nickodemus v. East Saginaw, 25 Id. 456; Detroit v. Martin, 34 Id. 170.</p>

<p>Fire insurance — Conditions of policy — Proofs of loss — Notice to • agent.</p> <p>1. Time is not made of the essence of the provision of the Michigan standard fire insurance policy requiring proofs of loss to he rendered -within 60 days after the fire; and the further provision that no suit can be brought on the policy “until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire,” refers to the requirements as to notice, proofs, and adjustment of the loss, and its intent is to provide that no suit can be maintained unless commenced within one year after the fire, and in no event until after compliance with such requirements.</p> <p>2. The following propositions are summarized from the opinion of Mr. Justice Grant, in which Morse, C. J., McGrath and Montgomery, JJ., concurred:</p> <p>a — Insurance agents, in making out applications for insurance, represent the company, upon which must fall the consequences of the agent’s failure to incorporate in such application the honest statements of the insured regarding existing insurance.</p> <p>b — The acts of clerks of insurance agents who solicit insurance, make out applications and policies, and generally attend to the business of their employers, are as binding as though done by the agents themselves.</p>

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

(Brevoort, J.) Bill for a receiver and an accounting, and to wind up the affairs of the defendant corporation. Complainant appeals. Decree reversed, and one entered in this Court in accordance with the opinion, in which the facts are stated.

<p>Inbet and slander — Pleading—Innuendo—Evidence—Justification.</p> <p>1. An article charging that the plaintiff in a libel suit would, as the defendant well knew, not hesitate to lie in court, or anywhere else, to defend himself against the charges made in the alleged libelous article, charges, in effect, that the plaintiff is of such a character that he would commit the crime of perjury in order to make such defense, and the language is libelous per se.</p> <p>2. Where pending a suit to recover damages for the publication of an alleged libelous article charging the plaintiff with various acts of political treachery, and in general arraigning him as a political traitor, the defendant publishes an article charging that the plaintiff would commit the crime of perjury in order to defend himself against the charges first made, the article first published may be introduced in evidence by the defendant on the trial of a suit brought for the publication of the second, in which the defendant attempts to justify by proving the truth of the charge last made.</p> <p>S. A petition for the appointment to office of the plaintiff in a libel suit is not competent evidence to show his good character, and that his reputation for truth and veracity is good.</p> <p>4. It is error to permit the counsel for the defendant in a libel suit to read from the affidavit of the plaintiff, upon which a change of venue has been granted, a statement that the plaintiff believed that a fair and impartial trial of the cause could not be had in the county where the suit was commenced, and. in which the parties resided.</p> <p>5. Where there is no doubt about the meaning of the language-used in the alleged libelous article, it is immaterial whether-the innuendo used in counting upon it correctly states its meaning, as it will be treated as surplusage.</p> <p>6. Where a defendant seeks to justify the publication of an article-charging that the plaintiff would commit the crime of perjury to defend himself against charges of political treachery made-by the defendant in a former article, and for the publication of which a libel suit had been commenced, the defendant may show not only the general character of the plaintiff for truth and veracity, but also that he was generally regarded in the community where he lived as a person who, in political matters, was unworthy of belief.</p>

(Haire, J.) Attachment. Defendant Healy brings error. Reversed, and judgment entered in this Court quashing the proceedings. The facts are stated in the opinion.

<p>Bills and notes — Release of surety.</p> <p>1. Where a note is indorsed by one not liable for the original debt, in reliance upon the agreement of the payee to give the maker the exclusive agency for the sale in a specified district of certain machinery manufactured by the payee, which agreement is a part of the same transaction as the indorsement, a violation of the agreement by the payee destroys the condition upon which the indorsement was made, and releases the indorser from liability, unless consented to or waived by him.</p> <p>3. In such a case the court will not stop to inquire into the amount of damages sustained on account of the violation of the agreement.</p>

Exceptions before judgment from superior court of Grand Rapids. (Burlingame, J.) Respondent was convicted of the violation of a city ordinance against the • indecent exposure of the person. Conviction affirmed, and record remanded. The facts are stated in the opinion.

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

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

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

<p>Railroad companies — Injury to employé — Contributory negligence— Competency of witness.</p> <p>1. How. Stat. § 7545, as amended by Act No. 139, Laws of 1885, which excludes the testimony of any person who is or has been an officer or agent of a corporation, in a suit prosecuted or defended by the heirs, assigns, devisees, legatees, or personal representatives of a deceased person against the corporation, includes only those who are authorized, in the matter with reference to which testimony is given, to act for the corporation.1</p> <p>2. A brakeman who voluntarily enters upon his employment, with notice, from a statement in a rule of the company and from his own observation, of a custom of the company to transport cars loaded with logs which project over the ends of the cars in such a maimer as to make the service more or less dangerous, is guilty of such negligence as will bar a recovery for injuries received while attempting to couple two of said cars, by reason, as claimed, of such manner of loading.</p>

(Daboll, J.) Motion to vacate an award. Order granting same set aside, and judgment entered in favor of plaintiff and appellant. The facts are stated in the opinion.

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

<p>Appeal from Manistee. (Judkins, J.)</p> <p>Bill to restrain the collection of a paving tax. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Master and servant — Dangerous machinery-injury to infant— Assumption of risk — Credibility of witness.</p> <p>1. There is no rule of law which prevents a jury from believing what a witness says upon the stand, because he may at other times have made statements inconsistent with his testimony.</p> <p>2. A master is liable for injuries to his servant, resulting from the master’s negligence in exposing the servant to dangers which the servant is incapable of appreciating; citing Railway Co. v. Bayfield, 37 Mich. 205,</p> <p>3. When the servant shows that the injury received was in consequence of a risk not ordinarily incident to the employment, growing out of the masters negligence, the burden is upon the master to show that the servant knew and understood the increased danger; citing Swoboda v. Ward, 40 Mich. 423.</p> <p>4. An employé, by reason of youth or inexperience, may not understand and appreciate a danger to which he is exposed, although the place and the dangerous machinery are open to observation. In one case, it may be due care to inform a servant of mature years and experience of the danger which he must guard against; while in the case of an infant, or one not of mature age, and without experience, it would be carelessness in a master to content himself with merely pointing out dangers which are not likely to be appreciated; citing Cooley, Torts, 553.</p> <p>5. A party entering upon a particular employment assumes the risk and perils usual thereto, when the usual and customary means to guard against accidents are adopted. If the servant, with full knowledge of the danger, and understanding the increased risk occasioned thereby, consents to enter into the employment, he voluntarily incurs the risk, and, if he suffers damages in consequence of injury received thereby, he will be without remedy. The fact that he remains in the master’s employment under such circumstances, and with such knowledge, is what constitutes contributory negligence on his part. In such a case, the master, in permitting his machinery to be thus more than ordinarily dangerous, is guilty of negligence; but the servant, with full knowledge thereof, by remaining, contributes thereto, and hence he cannot recover if he has such knowledge.</p>

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

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

<p>Appeal from Ionia. (Person, J., presiding.)</p> <p>Bill to foreclose a mortgage. Defendant banks appeal.</p> <p>The facts are stated in tbe opinion,</p>

<p>Negligence — Defective streets — Practice in Supreme Court — Costs.</p> <p>1. Where the record contains no index, no costs will he allowed for its printing.1</p> <p>2. The defendant is held not guilty of negligence in so filling in the trench in which water pipe had been laid in a public street, outside of the portion required to be kept reasonably safe for travel, as to leave over the trench a ridge of earth from eight to twelve inches high, and thirty inches wide at the base, to admit of settling.</p>

<p>Error to Jackson. (Person, J., presiding.)</p> <p>Assumpsit. Defendant' brings error.</p> <p>Tbe facts are stated in the opinion.</p>

<p>Landlord and tenant — Yearly holding — Notice to quit — Summary proceedings — Condition of occupancy.</p> <p>1. A summary- proceeding to recover the possession of land held by a tenant from year to year was commenced before the expiration of one year from the service of notice to quit. The complainant recovered judgment, which the defendant removed to the Supreme Court, where he for the first time raised the objection that the notice was insufficient. It appeared, however, that the statutory year had then elapsed, and that the complainant was entitled to the premises, and the judgment is affirmed.</p> <p>2. Complainant, in consideration of defendant’s verbal agreement, for her support, put him in possession of her land, and, on his failure to perform his agreement, instituted summary proceedings to eject him; and, while the testimony fails to show that, there was an express agreement that defendant should forfeit his possession in. case of a failure to furnish the agreed support, the Court hold that such must have been the understanding of the parties, and a judgment in favor of the complainant for the possession of the premises is affirmed.</p>

<p>Partnership — Husband and wife — Mortgage—Landlord and tenant —Assignment of lease.</p> <p>1. A married woman can secure the payment of the unpaid purchase price of property, the title to which vested in herself and husband jointly, by a mortgage upon her real estate.</p> <p>2. An agreement by which a husband and wife lease a hotel and purchase the furniture used therein, when executed, makes them joint owners of the leasehold and of the furniture, and * does not necessarily involve a partnership between them.'</p> <p>3. An assignee of the lease, and of the interest of the lessees in the furniture, is not a necessary party to a suit to foreclose the mortgage, an inquiry as to the equity existing between the assignee and the lessees not being important in such suit.</p> <p>4. Where, on the assignment of a lease with the consent of the lessor, no new leasing is made, nor understanding had that the lessees shall be released, nor acts done from which an intention to release them can be inferred, the assignment will not operate to discharge the lessees; citing Stewart v. Sprague, 71 ■ Mich. 50.</p>

Mandamus. Belator applied for mandamus to compel the respondent to pay a certain order. The facts are stated in the opinion.

<p>Rehearing, upon application of contestants, of case reported in 88 Mich. 567.</p>

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

(Smith, J.) Bill for an accounting between a ward and the estate of her deceased guardian. Defendant appeals. The facts are stated in the opinion.

(Reilly, J.) Appeal by heirs from an order of the circuit court, affirming the order of the probate court, allowing the widow her share in the personal estate of the deceased. The facts are stated in the opinion, and in 85 Mich. 34.‘

<p>Schools and school-districts — Certiorari—Organization of district-constitutional law.</p> <p>1. Proceedings whereby a school-district is created out of existing districts cannot be reviewed by certiorari after the district has assumed the functions of a corporation, the remedy being by quo warranto; citing School-Dist. v. Inspectors, 27 Mich. 3; Parman v. Inspectors, 49 Id. 63.</p> <p>2. In affirming the constitutionality of Act No. 176, Laws of 1891, which authorizes the organization of any township in the Upper Peninsula into a single school-district, the Court hold:</p> <p>a — The provision authorizing the township board and school inspectors of the township to determine whether a majority of the qualified electors of the township have signed the petition that notice be given of the election of officers for the new district at the next annual township meeting, is sufficient, there being no constitutional objection to such a tribunal, or to making their determination final; citing Friesner v. Common Council, 91 Mich. 504.</p> <p>i> — The provision for filing a certified copy of the petition, and the findings and doings of the township board and school inspectors thereon, with the secretary of the board of school inspectors of the county, is sufficiently complied with by filing such papers with the county commissioner of schools, an office created by Act No. 14V, Laws of 1891, which repealed the law providing for the former office.</p> <p>c — It is within the power of the Legislature to vest in the board of education of the new district discretion to determine the length of time schools shall be kept in any one year, beyond the constitutional requirement of three months, it being the same discretion now exercised by trustees of ordinary school-districts.</p> <p>d — There is no constitutional objection to the provision that all school property within the limits of the township shall, by force of the act, become the property of its public schools, and that all of the debts and liabilities of the primary districts of the township, as they existed prior to its incorporation under the act, shall become the debts and liabilities of the public schools of said township.</p>

(Judkins, J.) Bill to set aside the forfeiture of a land contract, and for other relief. Defendants Boughton and Lee appeal. The facts are stated in the opinion.

Mandamus. Relator applies for mandamus to compel respondent to hear the petition of relator for the termination of the guardianship over his estate. The facts are stated in the opinion.

Mandamus. Relator applies for mandamus to compel respondent to audit and allow a certain account. Tbe facts are stated in the opinion.

(Haire, J.) Defendants John and Emma Stockley appeal from an order denying leave to file a bill of review. The facts are stated in the opinion.

<p>Appeal from Gogebic. (Haire, J.)</p> <p>Defendants „ John and Emma Stockley appeal from an order denying them a rehearing.</p> <p>The facts are stated in Stockley v. Stockley, ante, 307.</p>

(Simpson, J.) Assunypsit. Plaintiff brings error. Reversed, and case remanded, with right to plead issuably within 20 days after remittitur is filed. The facts are stated in the opinion.

<p>Corporations — Preliminary subscription — Liability for stock subscribed.</p> <p>This-case involves the question o£ the .liability of the defendant as subscriber to a preliminary subscription paper, by which he subscribed and agreed to pay for a certain number of shares of the capital stock of an hotel company to be thereafter organized; and the action of the trial court in directing a verdict in his favor is affirmed, the case being ruled by Association v. Walker, 88 Mich. 62.</p>

<p>Waste by life tenant — Action at law — Equitable remedy — Priorities — Damages.</p> <p>The remedy for waste, committed by the owner of a life-estate in land charged with the payment of a legacy on the termination of the life-estate, is in equity, where further waste can be enjoined, and damages awarded for the waste committed, which will be held, so far as necessary, for the benefit of the legatee, whose claim must be paid before the remainder-men take.</p>

<p>Vicious dog — Pleading—Evidence.</p> <p>Plaintiff was bitten on tbe leg by defendant’s dog, and recovered a judgment for the injury sustained, which is reversed, because:</p> <p>a — Testimony was admitted for the purpose of showing a permanent injury to the plaintiff, without laying any foundation in the declaration for such proof,</p> <p>b — Plaintiff was permitted to exhibit to the jury the then condition of Ms leg, more than tM-ee years after the injury and nine months after the expiration of the period of disaMlity alleged, •without introducing any testimony to show that no change for the worse had occurred.</p> <p>c — The court permitted an inquiry to be made, on the cross-examination of the defendant, as to Ms disposition of Ms property pending the suit.</p> <p>d — Plaintiff was allowed to show, on the cross-examination of a medical witness of the defendant (who had been called by the plaintiff, and had treated the injured leg for rheumatism, and who had testified that he did not think it probable that such an injury as described would produce the result he saw on plaintiff’s knee), that dog bites were likely to entail serious and permanent injury, and cause hydrophobia; plaintiff not haying been afflicted with that malady, and not claiming that he had suffered during the period named from any apprehension thereof.</p>

<p>Taxes — Drain assessment — Interest—Sale—Constitutional law.</p> <p>1. It may well be doubted whether it would be competent for the Legislature to increase the burden provided by the law under which a tax was assessed by increasing the rate of the interest charge; citing Mogg v. Hall, 88 Mich. 576.</p> <p>'2. The interest charge which, under section 6, chap. 6, of the drain law of 1885 (Act No. 227), is to remain a lien upon the lands assessed for drain taxes, etc., is that fixed by the law under which the taxes were levied.</p> <p>8. The provision of the drain law of 1885, adopting the provisions of the general tax law relating to the collection of taxes, is not to be construed as including the provision of the latter law relating to the interest charge.</p>

<p>Sale — Countermanding order — Warranty—Authority of agent.</p> <p>Defendant gave plaintiff’s agent an order for a windmill, subject to plaintiff’s acceptance. The order provided that it was not subject to countermand, or to any change in its conditions by verbal arrangements with agents. And it is held that the order could be countermanded by the defendant at any time prior to its acceptance by the plaintiff, or to notice of plaintiff’s intention to accept it; and that an arrangement thereafter made by the agent with the defendant, under which thS'windmill was put up on defendant’s premises, was binding on the plaintiff.</p>

(Kinne, J.) Bill to restrain the construction of an electric street railway in a public street in the city of Ann Arbor. The facts are sufficiently stated in the opinion.

<p>Municipal corporations — Oity clerk — Appointment of deputy— Power to administer oaths — Officer de facto.</p> <p>1. Where a city charter vests in the city clerk all of the powers of a township clerk, and authorizes him generally to administer oaths and take affidavits, he has the power to appoint a deputy, who, in case of the absence, sickness, death, or other disability of the clerk, has the right to perform all of the duties which the clerk could legally perform.</p> <p>2. The actual legal right of one in possession of an office cannot be tried in a collateral proceeding between third persons, in which proceeding mere proof of user will be sufficient to show his official action valid.</p>

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

<p>Appeal from recorder’s court of Detroit. (Chambers, J.)</p> <p>Street-opening proceedings. Respondent appeals.</p> <p>The facts are stated in the opinion.</p>

(Hosmer, J.) Petition for allowance of claim against the estate of an insolvent corporation, under Act No. 94, Laws of 1887. Petitioner appeals from an order denying the claim. The facts are stated in the opinion.

<p>Appeal from Newaygo. (Palmer, J.)</p> <p>Bill to discharge a mortgage. ' Complainant appeals. Decree reversed, and one entered in this Court for the complainant. The facts are stated in the opinion.</p>

<p>Negligence — Dangerous premises — Operation of switch-bach railway —Liability of lessor.</p> <p>1. The owner of a pleasure resort and street railway leading to it does not, by leasing the privilege of operating a switchback railway at the resort, and advertising it as one of the attractions of the place, become an insurer against accidents to persons patronizing the lessee, or become liable for his carelessness.</p> <p>2. Plaintiff was injured while riding on a switch-back railway, operated by the owner at defendant’s pleasure resort, by the derailing of the car, caused, as she claims, by a chip having gotten upon the rail through the negligence of defendant’s carpenters, who were working near the place of the accident. A witness for plaintiff testified to seeing one chip by the side of the track at the place of the accident, with the shape of the car-wheel upon it, and other witnesses testified to seeing chips alongside of and on the track. There was uncontradicted testimony that an hour before the accident a son of the owner of the switch-back was at work with an adz, trimming off the center in between the tracks at the very point of the accident. And it is held that the jury were not warranted in finding that the accident was occasioned by reason of the carelessness or negligence of defendant’s servants in allowing the track to be obstructed.</p>

(Judkins, J.) Bill to correct a mistake in a land contract, and to enjoin the prosecution of a suit at law. Defendant appeals. The facts are stated in the opinion.

<p>Error to Ingham. (Person, J.)</p> <p>Trover. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Cass. (O’Hara, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>Tbe facts are stated in the opinion, and in 87 Mich. 281.</p>

<p>Master and servant — Railroad companies — Contributory negligence —Assumption of risk — Rules of company.</p> <p>A section foreman was provided Avith a hand-car for the purpose of inspecting his section of the road. It was the custom, when going through cuts, for part of the section men on the hand-car to face one way, and part the other, thus enabling them to watch for trains in each direction, and to stop in time to remove the car, and avoid danger. Time cards of regular trains were furnished, with rules printed thereon for the guidance of the section men, with which plaintiff was familiar, and one of which provided that no notice would be given of the passage of extra trains, and that trackmen must govern themselves accordingly. Plaintiff, on his own motion, went out to make the usual morning inspection alone, on a railroad tricycle belonging to the local agent, and was run down by an extra passenger train after he had emerged from a cut. Had he looked back, he could have seen the cars approaching at least ¿0, and probably 40, rods, and the tricycle could have been stopped within a distance of 50 feet, and easily lifted from the track. Plaintiff sued the company, and a verdict is held to have been properly directed in favor of the defendant for the following reasons:</p> <p>a — Plaintiff did not use the means provided for the purpose of making the inspection, but chose to take a conveyance capable of carrying but one, instead of using the car provided by the company, with which he could have made the inspection in the usual manner, and with safety.</p> <p>b — Plaintiff was guilty of contributory negligence in not being on the lookout for wild trains, and keeping his tricycle under control.</p> <p>c — Plaintiff assumed the risks of the business, of which the passage of extra trains without blowing a whistle or ringing a bell was one. He knew of the rule of the company, and had worked under it without protest, and it was not. of such a character as to be void because against public policy.</p>

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

(Ramsdell, J.) Bill to set aside a statutory foreclosure, to declare void the deed executed thereon, and to cancel the mortgage and note. Defendants appeal. Decree reversed, and case remanded for further proceedings in accordance with the opinion, in which the facts are stated.

(Lane, J.) Bill to set aside tbe allowance of a claim against the estate of a deceased person. Complainant appeals. The facts are stated in the opinion.

<p>Replevin — Bond—Jurisdiction of justice — Certiorari.</p> <p>1. On certiorari to review a justice’s judgment, an objection to the jurisdiction will not be considered unless made in justice’s court.</p> <p>2. How. Stat. § 6856, which provides for the filing of a bond, with sufficient surety or sureties, with a justice of the peace before the issuance of a writ of replevin, requires security additional to the pecuniary responsibility of the plaintiff; and where the writ is issued in favor of a copartnership, a bond signed by the firm, and by one of the members as surety, is not sufficient.</p> <p>3. In such a case the defendant is under no obligation to accept an amended or a new bond, nor does he waive any rights by refusing to consent to an amendment, and by insisting that the bond cannot be amended; but, on the application of the plaintiffs, the justice should direct an amendment or the filing-of a new bond, and, on the failure of the plaintiffs to comply with the order within a reasonable time, should quash the proceedings.</p>

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

<p>Constitutional lato — Trial by jury — Jury of less than twelve.</p> <p>1. Article' 6, § 27, of the Constitution of this State, which provides that “the right of trial by jury shall remain,” means that right as it existed at the common law, namely, a trial by a jury of 12 good men and true, whose determination must be unanimous upon the rights of the parties.</p> <p>2. The power vested in the Legislature by article 4, § 46, of the Constitution, to “ authorize a trial by a jury of a less number than twelve men,” cannot be delegated to any court or other tribunal.</p> <p>3. Act No. 142, Laws of 1861 (How. Stat. § 7622), which authorizes the court to proceed with the trial of a case before a less number of jurors than were originally impaneled to try the same, when by reason of death, sickness, or other cause any of the jurors are unable to attend, is 'unconstitutional.</p>

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

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

<p>Killing trespassing dog — Evidence of value.</p> <p>1. The law does not justify the killing of a neighbor’s valuable dog because he has left tracks on a freshly painted porch, has been found on one occasion in the henhouse, and has come around the house at night, chased cats into the trees, and barked.1</p> <p>2. In a suit to recover damages for the killing of a shepherd dog, chiefly valuable for his ability to herd cattle and horses, it is competent for farmers who have knowledge of the characteristics and qualities of the dog, and of the value of such an animal to a farmer who keeps stock, to testify to his value.</p>

(Lane, J.) Bill to restrain defendants from selling certain property seized on execution. Complainant appeals. The facts are stated in the opinion.

<p>Appeal from recorder’s court of Detroit. (Chambers, J.)</p> <p>Condemnation proceedings. Respondents Robinson appeal.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Appeal from recorder’s court of Detroit. (Chambers, J.)</p> <p>Condemnation proceedings. Eespondents appeal.</p> <p>The facts are stated in the opinion, and in</p> <p>Oity of Detroit v. Robinson, ante, 426.</p>

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

<p>Will — Undue influence — Question for jury.</p> <p>The trial court is held to have erred in taking the case from the jury.</p>

<p>Practice in Supreme Court — Exceptions during trial — Findings of trial court.</p> <p>1. Rulings made upon the admission of evidence cannot be reviewed unless excepted to.</p> <p>2. A party who desires to review a judgment rendered in a case tried before the court without a jury, and to question the conclusions reached by the court upon the facts and law, must have written findings, both of fact and law, and must take Ins exceptions thereto.1</p>

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

Mandamus. Delators applied for mandamus to compel respondent to vacate proceedings appointing election inspectors. The facts are stated in the opinion.

Mandamus. Belator applied for mandamus to compel tbe allowance of bis bill for services rendered in serving a requisition. Tbe facts are stated in tbe opinion.

(Smith, J.) Bill to settle the ownership of ice, and to restrain ■defendants from claiming title thereto, and from cutting or removing the same. Both parties appeal. The facts are stated in the opinion.

<p>Error to Ingham. (Person, J.)</p> <p>Submitted on briefs October 13, 1892.</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 80 Mich. 130.</p>

Mandamus. Delator applied for mandamus to compel respondent to vacate an order allowing an amendment to a declaration. The facts are stated in the opinion.

Mandamus. Relators applied for mandamus to compel a discovery in a judgment creditors suit. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to proceed in certain condemnation proceedings. The facts .are stated in the opinion.

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

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

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

<p>Error to Newaygo. (Palmer, J.)</p> <p>Ejectment. Plaintiff brings error.</p> <p>The facts are sufficiently 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>Error to Wayne. (Brevoort, J.)</p> <p>Trespass. Plaintiff brings error. Reversed as to defendant. Apel, and affirmed as to defendant Sbanaban. Tbe facts-are stated in tbe opinion.</p>

<p>Error to Jackson. (Peck, J.)</p> <p>Trover. Defendants bring error.</p> <p>Tbe facts are stated in tbe opinion.</p>

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

<p>Certiorari to review proceedings had to detach certain territory from that of petitioner.</p> <p>The facts are stated in opinion.</p>

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

<p>Appeal — Findings of trial court.</p> <p>This case is ruled by Haines v. Saviers, ante, 440.</p>

<p>Municipal corporations — Defective cross-walk — Contributory negligence — Evidence—Argument of counsel.</p> <p>1. In the absence of some notice to the contrary, travelers have a right to assume that a cross-walk is in a safe condition.</p> <p>3. The fact that the plaintiff in a negligence case knew, eight days before the accident, that the cross-walk on which she was injured was partially torn up, and that the street was being paved, is not sufficient to charge her with contributory negligence in attempting to cross on the walk, as she had the right to assume, in the absence of any danger signal, that the walk had been placed in good condition.</p> <p>3. Under an allegation in a declaration in a negligence case that the plaintiff was greatly and permanently injured in her spine, stomach, and internally, it is competent to show a subsequent urinary difficulty as one of the evidences of spinal injury.-</p> <p>4. Counsel have no right to refer in their argument to the result of any other suit, and especially is this so when the suit referred to is in no manner similar to the one on trial.</p>

<p>Motion by both parties for retaxation of costs.</p> <p>at the sum of $461.50.</p> <p>The facts are stated in the opinion.</p>

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

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

(Simpson, J.) Attachment under log-lien law. Defendant log-owners bring error. The facts are sufficiently stated in the opinion.

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

<p>Error to "Washtenaw. (Kinne, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>The facts are stated in the opinion, and in head-note.</p>

<p>Error to Osceola. (Judkins, J.)</p> <p>Replevin. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 77 Mich. 517.</p>

<p>Partnership — Retirement of member — Notice.</p> <p>Actual notice of the retirement of a member of a firm must be-given to a party who has been in the habit of receiving the-notes of the firm from a third party in the usual course of business, some of which have been paid in whole or in part, and others renewed, both before and after such retirement, in order to relieve the retiring partner from liability upon notes, given in the old firm name by its managing partner after such retirement.</p>

<p>Error to Missaukee. (Aldrich, J.)</p> <p>Debt. Plaintiffs bring error.</p> <p>The facts are stated in opinion.</p>

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

<p>Railroad companies — Negligence—Alighting from moving train— Pleading — Variance.</p> <p>1. A passenger is not guilty of negligence per se in alighting from a train after it has stopped and he has been invited to alight, and, while doing so, the train is started, and especially when the brakeman or conductor is standing upon the ground inviting and assisting him, unless the speed of the train is such that the danger is obvious.</p> <p>2. The plain inference from an averment in a declaration in a negligence case, that the train started “before the plaintiff had reasonable time to safely alight,” is that the train was negligently started while the plaintiff was in the act of alighting, and if a more specific allegation is desired the defendant should demur.</p> <p>3. An objection that there is a variance between a declaration in a negligence case and the proofs, in that the declaration avers that the plaintiff stood on the lower step of the car, and was in the act of stepping therefrom, when the car started, while the proof is that plaintiff stood near the door of the car, is without merit, it being unnecessary to aver the exact place, the gist of the action being that 'the train started while plaintiff was proceeding to alight.</p>

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

<p>.Bills and notes — Cosureties.</p> <p>Where, after the rendition of a judgment against the maker and accommodation indorser of a note, the maker requests the indorser to indorse a second note to raise money to pay the judgment, which he refuses to do unless the maker secures-a co-indorser, and at the request of the maker a third per-soil indorses the second note with the original indorser, the relation of the indorsers to the note is that of cosureties.</p>

<p>Error to Kent. (Grove, J.)</p> <p>Assumpsit. Plaintifi brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Mechanic’s lien — Enforcement.</p> <p>This case involves the enforcement of a mechanic’s lien, and the decree in favor of the complainants is affirmed. Only questions of fact are involved.</p>

<p>Deed — Delivery—Mental competency of grantor — Undue influence.</p> <p>This case involves questions of fact purely, and the decree setting aside a deed from a husband to his wife at the suit of his daughters, who claim that their father was mentally incompetent and unduly influenced, and that the deed was never delivered, is reversed.</p>

(Hosmer, J.) Bill to set aside an assignment of open accounts as fraudulent as to creditors, and for a pro rata distribution of tbe assigned property. Complainant appeals. The facts are stated in the opinion, and in 84 Mich. 364.

<p>Adverse possession — License—Gity streets.</p> <p>1. It is settled in this State that title may be acquired by adverse possession of property within the limits of streets; citing City of Big Rapids v. Comstock, 65 Mich. 78; Village of Essexville v. Emery, 90 Id. 183.</p> <p>2. The use of a portion of the street in front of a lot, in a manner inconsistent with and in violation of the statute giving the lot-owner license to use it in a prescribed manner, may establish his right to the land so used by adverse possession.</p>

<p>Exceptions before judgment from Bay. (Cobb, J.)</p> <p>Respondent was convicted of larceny.</p> <p>Tbe facts are stated in the opinion.</p>

(Gartner, J.) Bill to restrain defendant from interfering with an alleged right of way. Defendant appeals. The, facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to accept his approved liquor bond and the tax of $500, and to give him the receipt therefor. The facts are stated in the opinion.

<p>Railroad companies — Negligence—Failure to maintain proper connecting fences and cattle-guards — Killing stock— Amendment of verdict.</p> <p>1. 3 How. Stat. § 3377, which requites railroad companies to provide their right of way fences with suitable connecting fences and cattle-guards at all highway and street crossings, and to keep them in effective repair and sufficient to prevent stock of all kinds from passing upon the tracks at such crossings, contemplates that the tracks shall be exposed within the limits of the highway only.</p> <p>2. The claim of the defendant, that the manner in which it had constructed its fences and cattle-guards at the highway crossing where the injury was received was a substantial compliance with the statute cited, is held to have been properly submitted to the jury.</p> <p>3. Where a colt breaks into the highway from the pasture in which it is being kept, without the knowledge of the owner or negligence on his part, and gets upon a railroad track, where it is killed, the owner cannot be said to have allowed or permitted or suffered it to run at large, within the language of the case of Robinson v. Railroad Co., 79 Mich. 323.</p> <p>4. It is error for the court to amend a verdict after it is entered, and the jury are discharged, by increasing the amount, upon the affidavits of the jurymen that they had instructed the foreman to return a verdict for a certain sum as the value of the property in dispute, and an additional sum for interest thereon, and that the foreman had neglected to mention the interest,</p>

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

(Hosmer, J.) Respondent was convicted of aiding in the concealment of stolen property, and sentenced to the State prison for 4 years and 10 months. The facts .are stated in the opinion.

Clair. (Mitchell, J.) Respondent was convicted of murder in the second degree, and sentenced to the State prison for 22 years. The facts are stated in the opinion.

Exceptions before judgment from Saginaw. (Gage, J.) Respondent was convicted of an assault and battery. The facts are stated in the opinion.

Exceptions before judgment from Hillsdale. (Lane, J.) Respondent was convicted of selling liquor to a minor. The facts are stated in the opinion.

Exceptions before judgment from recorder’s court of Detroit. (Chambers, J.) Bespondent was convicted of keeping a gaming room. The facts are stated in the opinion.

(Smith, J.) Respondent was convicted of a violation of section 9175, How. Stat., and sentenced to the State prison for 8 years. The facts are stated in the opinion.

(Buck; J.) Respondent was convicted of entering’ a barn in tbe daytime, with intent to commit the crime of larceny, and sentenced to the State prison for 2 years and 9 months. The facts are stated in the opinion.

(Adsit, J.) Kespondent was convicted of rape, and sentenced to the State prison for 8 years. The facts are stated in the opinion.

(Lane, J.) Certiorari to review proceedings on habeas corpus instituted by Henry H. Gates to inquire into the cause of the detention of his daughter, Bertha Gates, at the State Industrial Home for Girls. The facts are stated in the opinion.

<p>Master and servant — Assumption of risk by employé.</p> <p>1. The books make a clear distinction between cases where risks are voluntarily assumed, and those where the servant acts under orders or defers to the superior judgment of the master.</p> <p>2Í Plaintiff, a brakeman on defendant’s freight train, had his arm caught between two dead-woods while attempting to draw a coupling pin, stepping in between the cars, while the slack was being given, to do so. No claim is made that the roadbed or draw-bar or dead-woods were defective or out of order, and plaintiff was of mature age, possessed of all of his faculties, and did not lack ordinary intelligence. And it is held that plaintiff was exposed to no extra hazard, nor set at work which he had not sought and engaged to do, and that he must be held to have assumed the ordinary risks of the employment, among which was the one that he encountered.</p>

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