Volume 95 — Michigan Reports

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

<p>Error to Benzie. (Aldrich, J.)</p> <p>Attachment proceedings under log-lien law. Defendant brings - error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Wayne. (Brevoort, J.)</p> <p>Bill of interpleader. Defendant Burkhart appeals.</p> <p>The facts are stated in the opinion.</p>

(Person, J.) Appeal by heirs from an order of the circuit court, affirming the order of the probate court, admitting a will to probate. The facts are stated in the opinion.

<p>Error to Wayne. (Brevoort, J.)</p> <p>Claim against the, estate of a decedent. Claimants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Highways — Establishment.</p> <p>The record of proceedings to establish and lay out a highway must show that all of the steps necessary to their validity were taken, and a recital to that effect in the commissioners’ return is hot sufficient; citing People v. Commissioners, 14 Mich. 528; Van Auken v. Commissioners, 27 Id. 414; Dupont v. Commissioners, 28 Id. 362; Moetter v. Commissioner, 39 Id. 726.</p>

<p>Negligence — Municipal corporations — Public improvements — liability of contractor.</p> <p>Where a member of the board of public works of a city has by the board been placed in charge of a grading and paving job as inspect- or, under statutory authority conferred upon the board, his action in directing the filling in of an excavation at a street crossing, and the removal of the barrier placed there by the contractor pursuant to his contract, may well be presumed to be within his authority as such inspector, and relieves the contractor from liability for damages resulting therefrom.</p>

(Grove, J.) Bill to set aside a deed on the ground of the mental incompetency of the grantor. -Defendant appeals. The facts are stated in the opinion.

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

<p>Partition fences — Replevin—Property seized under tax ivarrant.</p> <p>1. How. Stat. § 797, which provides that “the respective occupants of lands inclosed with fences shall keep up and maintain partition fences between their own and the next adjoining inclosures, in equal shares, so long as both parties continue to improve the same,” only applies to land which is inclosed by fences.</p> <p>2. A land-owner whose property is seized to satisfy a tax assessed against his land on his refusal to build the share of a fence apportioned to him by the fence viewers without jurisdiction, the same not being a partition fence within the meaning of the statute, can bring replevin for the property.</p>

Mandamus. Relators applied for mandamus to compel the respondent to set aside an order dismissing an appeal from probate court, and to permit them to appear and prosecute the appeal. The facts are stated in the opinion.

(Moore, J.) Bill to restore a deed which the grantor had destroyed. Defendants appeal. The facts are stated in the opinion.

(Haire, J.) Bill to remove a cloud from title occasioned by- a mechanic’s lien. Complainant appeals. The facts are stated in the opinion.

<p>Error to Gogebic. (Haire, J.)</p> <p>Attachment suit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Kent. (Adsit, J.)</p> <p>Bill to redeem from a statutory foreclosure. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence — Permanency of injuries — Evidence—Credibility of wit ness — Impeachment—Absence of plaintiff from former trial.</p> <p>1. Where, in a negligence case, plaintiff’s physician testifies fully in regard to her condition, and the disease from which she is suffering, resulting, as claimed, from the injuries received, it is competent for him to state from his experience, practice, and observation what percentage of persons in plaintiff’s condition recover their health, the question having a direct bearing upon the permanency of the disease.</p> <p>Z. Evidence of the arrest and conviction of a witness for a crime is admissible as affecting his credibility; but it is not competent to show what the witness testified to on the trial in regard to the charge made against him.</p> <p>3. It is not competent to cross-examine a witness in regard to his conviction of a crime, and then impeach his credit by showing that he has made statements contradictory to those made on such cross-examination.</p> <p>t. The testimony of a physician, who has known the plaintiff for some years, that, in his opinion, she'is “shamming before the jury,” is incompetent, the jury being- as well qualified as the witness to give an ojfinion on that subject.</p> <p>5. The’ following instructions as to the effect of the absence of the plaintiff from the first trial of the case are held to have been clear and explicit:</p> <p>a — Such absence is a circumstance to be considered by the jury, and, if not explained, must be taken as a circumstance against her, and as indicating, that her evidence would have tended to weaken her case.</p> <p>b — It was plaintiff’s duty to be present and give her testimony in her own behalf, if physically and mentally able to do so, and, if she was absent when able to be present, the jury may consider that as evidence tending to impeach the good faith of her claim.</p> <p>6. ’Where the jury find that a witness has testified falsely as to any material fact in the case, they have the right to disregard his testimony, and it may be their duty to disregard it as to material facts, unless it appears from other testimony that it is true.</p>

<p>Appeal from Macomb. (Canfield, J.)</p> <p>Bill for the discharge of a mortgage. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Municipal corporations — Defective street — Contributory negligence —Trial—Order of proof — Evidence—Remarks of court.</p> <p>1. Driving rapidly over a highway, where defects are plainly visible, has, under some circumstances, been held contributory negligence.</p> <p>2. Where the plaintiff in a negligence case received the injuries complained of by being thrown from his road cart while driving along a street in the night, and the evidence is conflicting as to the condition of the street, and the only evidence of fast driving is the testimony of the driver, that he “did not drive up a pretty good jog,” but that he was “ hurrying along,” and of the plaintiff, that he was “not in much of a hurry, just a fair rate of speed,” the questions of negligence and contributory negligence are properly submitted to the jury.</p> <p>3. It is within the discretion of the court to permit the plaintiff in a negligence case, after defendant has rested, to call a witness to give further proof as to the condition of the street, where the accident occurred.</p> <p>4. It is competent for' the witness to testify to the general bad condition of the street in the vicinity of the place of the accident, as bearing upon the question of notice; but testimony that the witness broke his buggy there about the time of the accident is inadmissible, but, if volunteered, and no motion is made to strike it out, the judgment will not be reversed on account of it.</p> <p>t>. Where the undisputed evidence establishes the fact of • the injury complained of, it is not reversible error for the court in his charge to state to the jury that “there is no doubt plaintiff has been severely injured.”</p>

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

<p>Negligence — Defeating highway — Evidence—Credibility of witness.</p> <p>1. Plaintiff was thrown from his wagon, and injured, by the front wheel striking a log partially imbedded in the traveled portion of the highway. The testimony tended to show that his horses shied at some object in the road or in an adjoining field, but not that they were running away, or that plaintiff had lost control of them. And it is held that it cannot be said as mat. ter of law that the mere shying of the horses, and not the collision with the log, was the proximate cause of the injury.</p> <p>2. Where in a negligence case the evidence tends to show that plaintiff’s leg, which was broken by the accident, is shriveled or withered, he may exhibit it to the jury as evidence of its present condition.1</p> <p>3. Where a witness who testified in favor of the plaintiff in a negligence case on the first trial, as to the location and height of a log in the highway which caused the accident complained of, is called by the defendant on the second trial, and varies his testimony materially from that given on the former trial, he may be asked on cross-examination the reason for such change> and may be inquired of as to a conversation had before the second trial, in which he gave certain reasons for proposing to make such change, and, if he denies giving such reasons, the other party to the conversation may testify to the entire conversation for the purpose of discrediting the witness; citing Electric Light Co. v. Grunt, 90 Mich. 469.</p>

Mandamus. Relator applied for mandamus to compel respondent to quash a writ of garnishment. The facts are stated in the opinion.

<p>Error to Ingham. (Person, J.)</p> <p>Case for slander. Defendant brings error.</p> <p>^Che facts are stated in the opinion.</p>

<p>Corporations — Service of summons — Estoppel—Judgment creditors bill — Parties,</p> <p>1. A return to a summons issued against a corporation, that the officer has served it upon the defendant in the county in which it is issued, by giving- a copy to the president of the corporation, naming him, is sufficient,, upon its face, to give the court jurisdiction.</p> <p>2. Where an officer is directed by the attorney for the plaintiff in a suit against a corporation to serve the process upon a certain stockholder, and on doing so is informed by such stockholder that the service should be made upon another person, in which statement he is corroborated by another stockholder, who is secretary, treasurer, and general manager of the corporation, and service is made, on such other person,- and a return made accordingly, said stockholders are estopped from questioning the validity of the service in a chancery suit brought against them to enforce the. collection of a judgment based thei;eon.</p> <p>3. An insolvent stockholder is not a necessary party to a hill filed to enforce a judgment against the corporation; citing Dunston v. Hoptonic Co., 83 Mich. 372.</p>

Exceptions before judgment from recorder’s court of Detroit. (Chambers, J.) Respondent was convicted of having engaged in the business of selling spirituous liquors without paying the required tax. The facts are stated in the opinion.

<p>Mutual benefit associations — Certificate of membership — Designation of beneficiaries — Application—Estoppel.</p> <p>1. Where, under the constitution of a mutual benefit association,» members have the absolute right to name their beneficiaries, it is the duty of the officer who issues a certificate of membership to insert therein the name of the beneficiary named in the application for membership.</p> <p>2. There is no legal objection to a member’s designating, in his application for transfer to another class of members, the beneficiaries he desires named in the new certificate of membership.</p> <p>3. The member will not; by the mere acceptance without objection of the new certificate, from which the name of one of the 1 beneficiaries designated in his application for transfer ia omitted, be held to have assented to such omission.</p>

Appeal, from Saginaw. (Edget, J.) Petition for sale of lands delinquent for taxes under Act. No. 195, Laws of 1889. Defendant appeals. The facts are stated in the opinion, and in 87 Mich. 439.,

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

Clair. (Canfield, J.) Bill to foreclose a mortgage. Complainant and defendant Howard appeal. The facts are stated in the opinion, and in 45 Mich. 404, and 79 Id. 642.

<p>Fire insurance — Standard policy — Action.</p> <p>1. Contracts of insurance, so far as the public are concerned, stand upon no different basis than other contracts.</p> <p>2. The object of How. Stat. §§ 4344-4353, which provide for what is known as the “Michigan Standard Fire Insurance Policy,” was to protect policy-holders, provide a policy fair to both parties, and avoid litigation.</p> <p>3. A fire insurance policy containing a clause not provided for ■ by the Michigan standard policy is not void, but voidable at the'option of the insured; citing Beecher v. Mill Co., 45 Mich. 103.</p>

<p>Trespass — Title of plaintiff — Land contract — Deed—Description— Directing verdict.</p> <p>1. The vendee in a land contract, which does not in terms give him a right to the possession of the land, cannot, before he has become entitled to a conveyance by a full performance of the contract on his part, maintain an action for injuries to the freehold; citing Moyer v. Scott, 30 Mich. 345; Anderson v. Boom Co., 57 Id. 216.</p> <p>2. Where, in a suit against a booming company for the flowage of plaintiff’s lands, there is some testimony tending to show that the injuries complained of were caused by a freshet, rather than by the act of the defendant in letting off the water from its dam, a request that a verdict be directed in favor of the plaintiff is properly refused.</p> <p>8. Deeds to a booming company which describe certain lands traversed by a river with sufficient certainty, but limit the grantee’s rights to rights of boomage along the river, and to the rights and privileges in the waters of the river belonging to the lands, are sufficiently certain as to description to permit them to be received in evidence in behalf of the defendant in a suit to recover for injuries sustained by the alleged unlawful flooding of said lands.</p>

<p>Landlord and tenant — Surrender of premises — Negligence— Pleading.</p> <p>1. A lease'of a saw-mill for so long a time as it shall take the lessees to cut certain designated logs, and which provides that the lessees shall return the mill, as soon as the job is completed, in as good condition as when received, natural wear and tear and loss by the elements excepted, does not terminate the moment the last log is cut and the men discharged, but the lessees may retain possession until their lumber is removed, and the mill is put in the condition required by the lease.</p> <p>2. Until the lessees have put the mill in the agreed condition after the logs are cut, in order to terminate the lease some notice or act equivalent to a notice is necessary on their part which shall say to the lessor that they have abandoned the leased premises and surrendered them to him; and their statement that they have ceased sawing, and discharged their mill hands, and the lessor’s knowledge of. such facts, are not equivalent to such notice.</p> <p>8. A lease of a saw-mill provided that the lessees should keep a night watchman, and exercise due care and diligence to protect the leased property from fire, the same as though it were their own. The mill was burned after the lessees had sawed their stook of logs and shut down the mill, and claimed to have turned' it over to the lessor. The lessor sued in assumpsit, counting on the lease, and the failure of the lessees to take care of the property, and its consequent destruction, and denied that the mill had been turned over to him. And it is held that the court correctly instructed the jury that even if the mill was turned over to the lessor, yet if, by reason of the carelessness and mismanagement of the lessees, fire had been taken from the mill, and put into the sawdust adjoining, such act would constitute a breach of the lease, and if the fire remained there without the knowledge of the lessor, and after-wards broke out, and destroyed the mill, and it was traceable to the carelessness of the lessees, they were liable.</p>

(O’Hara, J.) Bill to foreclose a mortgage, and have it declared prior in equity to a subsequent mortgage, which was first recorded. Defendant Coker appeals. The fapts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to canvass the returns now on file of the vote for the office of Congressman, and to issue a certificate of election accordingly.

<p>Equity pleading — Forealosicre of mortgages — Demurrer—Multifar- . iousness.</p> <p>1. Where a bill is filed by the holder to foreclose four mortgages, all given by the same mortgagor, three of which cover certain portions but not all of the land covered by the fourth mortgage, which is first in priority, the mortgagor cannot demur to the bill as multifarious.</p> <p>2. The substance of the rules on the subject as to what constitutes multifariousness appears to be that each case is to be governed by its own circumstances, and must be left in a great measure to the sound discretion of the court; citing 1 Daniell, ‘ Ch. PI. & Pr. 334, and cases cited.</p> <p>3. Where all of the complainants have a common interest in the whole matter comprised in the bill, the objection of multifariousness, set up by defendants who are concerned only in a portion of the subject-matter, is a question of discretion, to be determined upon considerations of convenience with regard to the circumstances of each particular case; citing 1 Daniell, Ch. PI. & Pr. 334, and cases cited.</p> <p>4. The holder of four mortgages, the first of which covered all of the land described in the three junior mortgages and other lands, filed a bill to foreclose all of the mortgages, making the mortgagor, against whom alone a personal decree was asked, a party defendant, with other parties, who were interested in portions of the mortgaged premises, to„ which bill the mortgagor demurred as multifarious, wliich demurrer is overruled.</p>

<p>Uhel and slander — Evidence—Question for jury — Instructions:</p> <p>1. Plaintiff was entitled to show that no warrant was exhibited to him, and no charge made or stated, when he was taken into custody; and that while the libelous article made a case justifying a complaint, .warrant, and detention, the circumstances did not, in fact, justify an arrest on suspicion.</p> <p>2. The sting of the article is the imputation of crime; and it was for the jury to say to what extent fact was poisoned by fiction, and whether the publication, by misrepresenting the incidents of the burglary therein mentioned, and by misstating the conduct and appearance of the plaintiff and the circumstances attending his arrest, had not given to the grains of truth a color and weight they would not otherwise have possessed, and whether fictitious incidents had not had the force and effect of proofs.</p> <p>3. Defendant’s request for an instruction that there is nothing in the subsequent article (in which it is stated that plaintiff had been released, as there was no evidence to show that he was the man who was wanted at Bothwell) which would authorize the jury to increase the damages in this case, said article not meaning that plaintiff was guilty of the Bothwell burglary, and was only discharged for want of evidence, was properly refused.</p>

<p> Libel and slander. </p> <p>This case is ruled by McAllister v. Free Press Co., ante, 164.</p>

(Brevoort, J.) Bill to restrain the city of Detroit from interfering with the occupancy by complainants of stalls in the Central Market. Defendant appeals. The facts are stated in the .opinion.

(Reilly, J.) Bill to enjoin defendants from erecting and maintaining fences or walls on the outer sides of the parcels adjoining .the approach to the bridge leading to Belle Isle Park. Complainants appeal. The facts are stated in the opinion.

<p>Equity — Accounting—Evidence.</p> <p>1. Courts of equity have jurisdiction to compel an accounting where fiduciary relations exist, or fraud is charged; citing Story, Eq. Jur. § 459; Pom. Eq. Jur. § 1431.</p> <p>2. Where a bar-tender, who is charged with the duty of keeping an accurate account of all moneys received by him, and of paying or accounting for the same to his employer, retains a portion of the money, the amount of which is peculiarly within his knowledge, the employer may proceed in equity for mi accounting, and may pursue the fund.</p> <p>3. The fact that the acts complained of impute to the defendant the commission of a criminal offense, and that, if he is compelled to render an account, evidence may be produced forming the basis of a criminal accusation, will not oust the court of jurisdiction.</p> <p>4. Where, in a suit to compel an agent to account for moneys which he is charged with having received and not paid over or accounted for, a large amount of gold, silver, and paper money is found in his possession, including two marked silver dollars which he has taken, and it is within his power to show where he obtained the unmarked money if it does not belong to his employer, his faildre to testify in his own behalf must be construed most strongly against him.</p>

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

<p>Appeal from Saginaw. (Edget, J.)</p> <p>Bill in aid of execution. Complainant appeals.</p> <p>The .facts are stated in the opinion.</p>

<p>Practice in Supreme Court-Bill of exceptions — Breach of covenant — Pleading in justices' courts.</p> <p>1. Only the errors mentioned in the appellant’s brief will he considered; citing Supreme Court Rule No. 61.</p> <p>2. The practice, of stipulating a bill of exceptions, without the sanction of the circuit judge, cannot be commended; and, if such fact is brought to the attention of the Court before the argument of the case, the appeal will be dismissed.</p> <p>3! An oral declaration in justice’s court, which states that the action is brought for back taxes, levied and assessed against a designated parcel' of land prior to its purchase by and conveyance-to the plaintiff by the defendant by warranty deed, sufficiently apprises the defendant that plaintiff claims that the deed covenanted against such taxes, and that plaintiff seeks to recover for a breach of said covenant, and is sufficient, under the liberal rules governing oral pleadings in justice’s court; citing Daniels v. Clegg, 28 Mich. 32; Bradshaw v. McLoughlin, 39 Id. 480; Soper v. Mills, 50 Id. 76; Nugent v. Teachout, 67 Id. 571.</p>

<p>Pleading— Variance.</p> <p>Where, in a suit for obstructing a private way, there is a variance between the allegations in the declaration, descriptive of the way alleged to have been obstructed, and the evidence of the plaintiff as to the way actually used by him, a verdict should be directed for the defendant.1</p>

<p>Negligence — Careless driving — Damages—Loss of profits — Pleading —Evidence—Instructions.</p> <p>1. Loss of profits must be specially counted upon in order to admit proof of the same as an element of damage in a negligence case; citing Joslin v. Ice Co., 50 Mich. 516.</p> <p>2. The loss of profits in conducting a business involving the labor of others, arising from the suspension of the business by reason of personal injury to the owner; is not a necessary consequence of such injury, the extent of recovery being what his services were worth in conducting the business; citing 3 Suth. Dam. 268; Marks v. Railroad Co., 14 Daly, 61; Masterton v. Mt. Vernon, 58 N. Y. 391; Johnson v. Railway Co., 52 Hun, 111; Bierbach v. Rubber Co., 54 Wis. 208.1</p> <p>3. Error cannot be assigned upon an instruction which embodies in the general charge a request to charge presented by the appellant.</p>

<p>Criminal law — Bastardy proceedings — Pendency of prior action— Bar.</p> <p>The pendency of bastardy proceedings in the circuit court is not a bar to a second complaint and examination for the same offense.1</p>

Exceptions before judgment from Ingham. (Person, J.) Respondent was convicted of a violation of the provision of the liquor law prohibiting the sale of liquor by druggists to be drank on the premises. The facts are stated in the opinion.

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

<p>Negligence — Fires—Contributory negligence — pleading—Evidence— Municipal ordinances.</p> <p>1. "Where, in a suit to recover damages for the negligent setting of a fire, the evidence shows that the plaintiff had knowledge of the fire two days before his property in an adjacent building was burned, and took no steps to prevent its spreading and destroying the property, and failed to notify the defendants that the fire was spreading, the question of his contributory negligence should be submitted to the jury.1</p> <p>2. An allegation ip. the declaration in a negligence case that the defendants willfully, wantonly, negligently, and unlawfully caused the fire to be set which destroyed plaintiff’s property does not imply that the act of setting the fire was done with the direct purpose of injuring the plaintiff, and in so far as the case of Montgomery v. Booming Co., 88 Mich. 633, implies a contrary holding, it should not be followed.</p> <p>3. It is error to permit a witness to testify to the value of articles destroyed by the alleged negligent setting of a fire, a description of which is given to the witness by the plaintiff, but not stated to the juiy; citing Kempsey v. McGinniss, 21 Mich. 123.</p> <p>4. A witness who testifies that he has been connected with three different exhibitions of "which museums formed a part, and' that while with two of them he purchased curiosities and animals for exhibition, and that at one time he bought a museum of the plaintiff, is competent to give an opinion of the value of that class of property.</p> <p>5. A provision in a city charter requiring the publication of ordinances at least one week in the' official paper of the city is sufficiently complied with by a publication as often as the official paper is issued, there being no Monday issue.2</p> <p>6. An ordinance prohibiting the setting of fires, except under certain restrictions, must be pleaded in order to authorize its introduction as evidence tending to show the negligence of the defendants in setting the fire which destroyed the plaintiff’s property.</p>

<p>Error to Wayne. (Gartner, J.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 79 Mich. 1.</p>

<p>Assault — Dangerous game.</p> <p>A student was passing peaceably along the sidewalk, when some of his fellow-students formed in a line behind him, and each pushed the one in advance until he was reached, in which game he took no part; and it is held that he had the .same right to protection from such an assault as if he were a stranger, and that the student who was thus pushed against him is liable for the injuries he received.</p>

<p>Error to Cass. (O’Hara, J.)</p> <p>Ejectment. Plaintiff brings, error.</p> <p>The facts are stated in the opinion.</p>

<p>Salé — Agency—Evidence.</p> <p>This case involves the alleged sale of a quantity of lumber to the defendant. And it is held that the question should have been, submitted to the jury.</p>

(Reilly, J.) Petition by the guardian of an infant for an order requiring 'the payment of the balance of the purchase price of premises sold under Hoav. Stat. § 6719 et seq. Respondents appeal. The facts are stated in the opinion.

(Beilly, J.) Bill to set aside .certain conveyances as fraudulent. Complainant appeals. The, facts are stated in tbe opinion, and in the former reports of the case.

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

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

<p>Certiorari to Sanilac, to review an order reversing the action of a circuit court commissioner dissolving an attachment. (Beach, J.)</p> <p>The facts are stated in the opinion.</p>

<p>Libel and slander — Evidence—Cross-examination—Trial.</p> <p>1. It is error for the court to exclude a question, put to a witness on cross-examination, on the ground that he has been over the matter inquired about on his direct examination; citing Zucker v. Karpeles, 88 Mich. 413, 424.</p> <p>3. Where a witness for the defendant in a slander suit testifies on cross-examination to having conversed with the plaintiff and his wife in regard to the conduct claimed to have been the occasion for the alleged slanderous statements, the further inquiry whether the plaintiff and his wife had not learned that the witness had been talking to the defendant about them, and came up to find out if it was so, is not objectionable.</p> <p>3. It is not improper for the trial court, under some circumstances, and upon its own motion, to reject incompetent or immaterial testimony.</p>

<p>Certiorari to review two orders imposing penalties upon petitioner for contempt.</p> <p>The facts are stated in the opinion.</p>

<p>Municipal corporations — Defective sidewalk — Personal injuries— Evidence — Exhibiting injured member to jury— Power of court to require — Contributory negligence.</p> <p>1. Only the assignments of error discussed in. the appellant’s brief will be considered.</p> <p>2. In an action for an injury to plaintiff’s arm, the opinion of a medical expert, whether the condition of the arm as alleged might co-exist with the fact of the ability of the plaintiff to use it in the manner witnessed by the jury, is admissible.</p> <p>3. The question whether the trial court has the power, under any , circumstances, to require the plaintiff in an action for personal injuries to submit to an examination by a physician, before the jury, of the portion of the body alleged to have been injured, is answered in the affirmative.</p> <p>4. The court is justified in refusing to exercise such power where the necessities of the case are not such as to call for it, or where the sense of delicacy of the plaintiff may be offended by the exhibition, or where the testimony would be merely cumulative, or where, in the judgment of the court, it would not materially aid the jury.</p> <p>5. Where, in a negligence case for injuries received by falling upon a sidewalk, it conclusively appears from the testimony that the plaintiff could have seen the obstruction in the walk if she had been looking for it, and her testimony tends to show that just before she stumbled over it she heard a whistle, and became frightened and hurried on, the question to be submitted to the jury is whether the circumstances were such as to excuse her attention to the defect in the walk at the time of the injury.</p>

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

<p>Res judicata — Set-off—Evidence—Boohs of account„</p> <p>1. The failure of a defendant to give notice of set-off will not preclude him from bringing a suit to recover a claim which he might have set off, but did not, in the former case.1</p> <p>2. Proof that books of account have been correctly and accurately kept is sufficient to meet the claim that there is no evidence tending to show their fairness, raised under an objection that they are irrelevant; immaterial, and incompetent as evidence.</p> <p>8. It is not necessary, in order to lay a foundation for the introduction of books of account in evidence, for the owner to call as witnesses third parties who have settled by the books; citing Montague v. Dougan, 68 Mich. 98; Ganther v. Jenks & Co., 76 Id. 510; Lester v. Thompson, 91 Id. 250.</p>

Mandamus. Relator applied for mandamus to compel respondent to dismiss an appeal from tbe probate court. Tbe facts are stated in tbe opinion.

<p>Appeal from Macomb. (Canfield, J.)</p> <p>Bill to set aside a deed. Complainants appeal, the appeal being prosecuted by Margaret Buckley, as survivor.</p> <p>Tbe facts are 'stated in tbe opinion.</p>

<p>Estoppel — Municipal improvements — Grading street.</p> <p>An abutting lot-owner who joins in a petition for the grading of a street in a manner necessitating the resting of the foot of the embankment, made in raising the grade, upon his lot, and who makes no objection while the work is being done, although he sees that his fence is being covered with earth, and himself tears it down and removes it, is estopped from claiming damages for the consequent injury to his premises; citing Hembling v. City of Big Rapids, 89 Mich, 1.</p>

. Mandamus. Eelator applied for mandamus to compel respondent to institute proceedings to remove an alleged encroachment upon a highway. Eespondent returned that, after a full investigation, he did not believe that any such encroachment existed.

<p>Equity pleading — Amendment of bill — Inconsistent averments.</p> <p>Matter inconsistent with or repugnant to the substantive allegations of the original bill cannot be introduced by amendment.</p>

(Adsit, J.) Certiorari to review proceedings resulting in adjudging Fred H. Leonard a mentally incompetent person, and in the appointment of a guardian of his person and estate. The facts are stated in the opinion.

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

Mandamus. Delators applied for mandamus to compel respondents to receive certain protests, and enter tbe same on the journals of their respective bodies. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to appoint commissioners under Act No. 67, Laws of 1891, providing for the condemnation of the franchise of plank or toll road companies. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to spread a drain tax npon the assessment roll of his township. The facts are stated in the opinion.

<p>Partnership — Evidence.</p> <p>I. A subpartnership does not in fact exist where one party furnishes all the capital, receives all the profits, and owns all the assets.</p> <p>2. In such a case the ostensible partner may _ be held liable to third persons on- the ground that he has held himself out as a partner, and they have treated him as such; but he has no interest which will entitle him to an accounting, or to any action at law or in equity against the other party.</p> <p>3. Where a so-called “subpartner” owns the entire interest, including profits and property, he must be considered as the real partner, standing in the place of the ostensible one, and assuming his obligations and liabilities.</p> <p>4. Where fraud is charged in the execution of a partnership agree- . ment, in that it was attempted to conceal the name of the real partner, and screen him from liability, evidence of conversations had with either party in interest, either before or after the execution of the agreement, which throws light upon the actual nature of the transaction, is competent.</p>

<p>Will — Mental incompetency — -Undue influence — Evidence—Subsequent declarations, facts, and circumstances.</p> <p>1. Declarations of a testator, made before and after'tbe making of tbe will, may be given in evidence for the purpose of showing his state of mind when the will was made, the latter being admissible for the reason that the condition of mind ascertained at the subsequent date may be presumed to have existed at a prior time; citing Waterman v. Whitney, 11 N. Y. 157; Beaubien v. Cicotte, 12 Mich. 459; Harring v. Allen, 25 Id. 505; Mooney v. Olsen, 22 Kan. 69.</p> <p>2. Evidence of subsequent declarations is admissible as tending to show the fact that the influence exerted accomplished its improper purpose, and subjected the testator’s will to that of the beneficiary, in the absence of such a change in the relations of the parties as renders such testimony inadmissible.</p> <p>3. There cannot well be a middle ground between the doctrine held in some cases, that, to render subsequent declarations admissible, they must be made so near the date of the will as to be a part of the res gestae, and the rule to be deduced from the Michigan cases, that such declarations are admissible in any case where the fair inference, from all the circumstances, is that they truly represent the testator’s state of mind at the time the will was made.</p> <p>4. Where a will is contested on the ground of undue influence, and the proponent relies upon the presumption of its validity arising from its non-destruction by the testator during a period of years, and offers testimony tending to show the declarations of the testator that he had made the will, and that it could not be broken, and his directions to the proponent to resist any attempt to break it, it is competent for tbe contestant to introduce testimony relating to the subsequent conditions and declarations of the testator, and to proponent’s dominion over him, for the purpose of weakening said presumption, and of showing that the non-destruction of the will and said declarations were the result of or made while the testator was under the sanie dominion as was exerted when the will was made.</p> <p>5. The law permits facts and circumstances occurring after the execution of a will to be shown relating to the condition of the testator’s mind, and the question of fraud and undue influence claimed to have been exercised over him, for the purpose of proving, by inference or otherwise, that the same conditions existed before and at the time of its execution as existed afterwards on those points.</p> <p>6. Testimony relating to subsequent facts and circumstances and declarations, tending to show the state of mind of the testator at the time of making the will and the fact of undue influence, is not rendered incompetent by evidence showing that the testator was suffering senile decay, such evidence going to the sufficiency of the testimony.</p> <p>7. A will which is obtained by fraud in the first instance is void, and nothing short of a republication will make it valid.</p>

<p>•Contract — Preventing performance — Damages—Quantum meruit— Pleading — Evidence.</p> <p>1. Where the contract sued upon is set forth in the declaration, and its execution is not denied under oath, proof of its execution is unnecessary; citing Circuit Court Rule No. 79.</p> <p>2. A witness may be cross-examined upon all points material to the issue, whether the party has called them out upon the direct examination or not; citing Ireland v. Railroad Co., 79 Mich. 163.</p> <p>8. The error committed in refusing such cross-examination is waived if the complaining party makes the witness his own, and examines him at length.</p> <p>4. A party who is prevented from performing a labor contract by the wrongful act of the other party may recover on a quantum meruit what his services were reasonably worth, although in excess of the contract price.</p> <p>5. Where a contractor declares specially upon- a breach of the contract, and upon the common counts for labor expended and expenses incurred in and about its attempted performance, it is not error to allow him to elect to recover on the quantum meruit at the close of the testimony, such recovery being restricted to the actual services rendered and expenses incurred.</p> <p>6. Wheie in a suit upon a contract with an assurance company to recover whatever was worth saving from a sunken vessel; in consideration of one-half of the net amount realized by the company from the sale of the articles recovered, it appears that the plaintiff was px-evented from fully performing the contract by the wrongful act of the defendant, and he declares specially upon said breach, and also upon the common counts for labor performed and expenses incurred in the attempted performance of the contract, and elects at the close of the testimoxxy to recover therefor uixon a quantum 'meruit, and defendant contends that the sale of the articles recovex-ed was with plaintiff's consent and at a fair price, which plaintiff denies, and alleges that such sale was a breach of the contract, testixxxony tending to show the value of the articles sold is competent upon this branch of the case, although it also-tends to show damages arising from the breach specially counted upon.</p>

<p>Bills and notes — Alteration—Evidence—Estoppel—Pleading—Statute of frauds.</p> <p>1. Where a plaintiff can recover only on the ground of estoppel, such estoppel constitutes a distinct cause of action, and must be specially pleaded; citing Gooding v. Underwood, 89 Mich. 187.</p> <p>.2. In a suit by the purchaser against the maker and indorser of .a, promissory note, the indorser denied its execution under oath, --and gave notice that the amount of the note had been raised since the indorsement. An expert witness testified that the body of the note and the signature were in the handwriting of the maker; that the indorsement was the signature of the indorser; 'that the note had the appearance of having been all written at ■one time, and by the same pen, ink, and hand; and that, in his ■opinion, it was so written. And it is held that the note was properly received in evidence, to be scrutinized by the jury, .and form the basis for a verdict, if found to be genuine.</p> <p>8. The plaintiff testified that he purchased the note from the maker, and paid him with a bank check, which was admitted in evidence, against the objection of the counsel for the indorser. And it is held that it was necessary for the plaintiff to prove his title to the note; and the circumstances of the purchase, including the amount paid, having been admitted without objection, the check, which was a part of the transaction, and which tended to corroborate the alleged purchase, was admissible, and none the less so because the indorser did not care to controvert the fact of such purchase.</p> <p>4. The indorser testified that, at the time he indorsed the note, jhe also indorsed two other notes for the same amount. And it is neld that the further testimony that the latter notes were raised the same as the one in suit was properly excluded.</p> <p>5. The indorser testified on cross-examination that sufficient spaces were left before the figures in the margin representing the original amount of the note, and the words in the body of the note representing the same sum, for the insertion of the figure and word, respectively, used in raising the note. And it is held that the further questions, why he did not put marks in, so that the spaces could not be filled, and if he did not know that it was ordinarily done, and if he did not care whether it was left in a condition so that it could be changed, were within the range of legitimate cross-examination.</p> <p>8. The purchaser of a note which had been raised from $500 to $3,500 sued the maker and indorser. The indorser defended on the ground of the forgery. To meet this defense the plaintiff testified that, after he purchased the note, he had an interview with the indorser, and stated to him that he had taken a $3,500 note of the maker, indorsed by the indorser, to which the indorser replied that he did not remember indorsing a note for that amount, but that, if his name was on the back of it, it was good, and would be paid, and asked when the note was due, which information the plaintiff could not then give, but did 12 days later, when the indorser said he was glad that the plaintiff had the note, and wanted him to take other paper, but stated that he should indorse no more paper for the maker. And it is held that the indorser was not estopped from making his defense, and that a verdict should have been directed in his favor.</p> <p>7. The note being in writing, and signed by the indorser, and the estoppel, if one exists, going to the identity of the writing, and precluding the indorser from denying its genuineness, an objection that the effect of the alleged estoppel is to do violence to the statute of frauds is untenable.</p> <p>8. The following general propositions are summarized from the opinion of Chief Justice Hooker:</p> <p>a — The doctrine of estoppel in pais had its origin in willfux misrepresentation, but, under the genial influence of courts of equity, the rule has been much extended, and to-day includes mistaken and ignorant misrexiresentation, and even silence, whenever a clear duty to know and speak the truth exists.</p> <p>b — The modern decisions have established the rule that the purchase of an obligation to pay money, in consequence of a statement by the obligor that he is liable to pay it, will give rise to an estoppel, and preclude him from setting up a defense to a suit brought for the benefit of the purchaser, though it might have been good against the assignor; and it has been held sufficient if the language used is such as to lead the assignee to believe that the debt is'valid.</p> <p>c — The doctrine of the federal courts is to the effect that in order to constitute an equitable estoppel, such as will prevent a party from asserting his legal rights to property, there must be some intended deception in the conduct or declarations of the party to be estopxsed, or such gross negligence on his part as to amount to constructive fraud; citing Henshaw v. Bissell, 18 Wall. 255; Brant v. Iron Co., 98 U. S. 326; and there is nothing in Truesdail v. Ward, 24 Mich. 117, and Heyn v. O’Hagen, 60 Id. 154, that does violence to these decisions, which, state the law correctly.</p>

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

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

<p>Error to Berrien. (O’Hara, J.)</p> <p>Case. Both parties bring error.</p> <p>Tbe facts are stated in the opinion.</p>

<p>Deed — Mental competency of grantor — Burden of proof — Evidence —Homestead—Conveyance by Tmsband to wife.</p> <p>1. Where the transaction is equitable, the rule that the beneficiary under a deed alleged to have been secured by undue influence and from an incompetent grantor has the burden of showing an absence of such conditions does not apply.</p> <p>2. The statute requiring a wife to join with her husband in a deed of the homestead does not prevent his conveying his interest therein to her.</p> <p>3. Testimony of a daughter that her aged father sometimes addressed her by the name of another child, that he lost his way one night in a city near the farm where he lived, and that twice afterwards he was brought to her house, when she was told he had lost his way, -does not show such a loss of memory as will justify any inference of incapacity; and the facts that he sometimes cried, and seemed low-spirited, and sat all day without talking unless spoken to, when he answered intelligently, are no evidence of his mental unsoundness.</p>

Clair. (Mitchell, J.) Ejectment. Defendant brings errór. The facts are stated in the opinion, and in the former report of the case.

<p>Appeal from Lake. (Judkins, J.)</p> <p>Bill to cancel certain deeds. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill to ónjoin the collection of a sewer assessment* Defendant city appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Van Burén. (Buck, J.)</p> <p>Bill to remove cloud from title. Defendant appeals.</p> <p>The facts are stated in the ojjinion.</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 Iosco. (Simpson, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

Motion by defendant to^ dismiss an appeal from an order confirming the report of a commissioner on a partnership accounting. The facts are stated in the opinion.

<p>Waters and water-courses — Diversion—Appeal—Weight of evidence.</p> <p>The conclusion of the circuit judge that the stream which complainant charges defendant with diverting did not originally entér upon or touch complainant’s land, and thát she therefore has no rights in the water, is affirmed.</p>

Motion by petitioner to dismiss an appeal from a decree in proceedings for the collection of delinquent taxes. The facts are stated in the opinion.

Mandamus. Delator applied for mandamus to compel respondent to grant leave to bring suit upon a residuary legatee's bond. The facts are stated in the opinion.

<p>■ Mandamus.</p> <p>Relator applied for mandamus to compel respondent to quash a certain suit commenced by summons. The facts are stated in the opinion.</p>

Mandamus. Relator applied for mandamus' to compel respondent to reinstate him to membership. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to comply with the provisions of an ordinance regarding the sale of tickets. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to canvass the returns of election for the office of circuit judge as filed in the office of the county clerk. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to deduct from the net assets of relator, for the purposes of taxation, the value of the real-estate mortgages held by it. The facts are stated in the opinion.

<p>Conversion — Evidence—Instructions to jury.</p> <p>1. In trover for timber which the defendants are charged with dishonestly converting, it is proper for them to show that they purchased the portion of the timber they admit having received from a third person, and the price they paid for it.</p> <p>2. An instruction that “there is evidence also, — whatever you may think of the evidence,” — stating it, does not discredit the witness whose testimony is thus referred to.</p> <p>3. Actual possession by the defendant of timber alleged to have been converted is not necessary to create a liability therefor, which arises if he in any way abetted or connived in the unlawful taking.</p> <p>4. It is not easy in the midst of a lengthy charge always to choose the best method of expressing an idea,* or to speak with absolute accuracy, and it is enough if the language used is such as to warrant the assumption that it was correctly understood by the jury. '</p>

<p>Appeal from superior court of Grand Eapids. (Burlin'game, J.)</p> <p>Street-opening case. Petitioner’ appeals.</p> <p>The facts are stated'in the opinion.</p>

(Newton, J.) Bill to enforce tbe provisions of a separation agreement, and to enjoin the widow from claiming a distributive share in her husband’s personal estate. Complainant appeals. The facts are stated in the opinion.

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

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

(Reilly, J.) Bill to restrain a plank-road company from establishing, keeping, or maintaining a toll-gate within the limits of complainant village. Defendant appeals. The facts are stated in the opinion.

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

<p>Contract — Work and labor — Evidence—Instructions to jury.</p> <p>1. Where, in a suit to recover for lathing and plastering a dwelling-house, the defendant claims that the work was done for a third party, who had contracted to do the stone masonry, brick work, and lathing and plastering necessary to the erection of the building, evidence on the part of the plaintiff of a conversation with the defendant at the time the contract sued upon is alleged to have been made, in which the plaintiff stated that the contractor already owed him for other work, and that he would not have anything to do with him, is admissible as a part of the res gestae.</p> <p>2. Plaintiff may also testify to a statement made by the wife of defendant in his presence, after the completion of the work, that the money was in the bank to pay for it, and in this connection may show that the premises belonged to the wife, as throwing light upon her interest in the subject.</p> <p>S. Plaintiff may show that after he began work the specifications attached to the original contract were produced, and he was told by the defendant to do the work according to them, and he should have his pay, and that pursuant thereto he did three-coat instead of two-coat work, which was all he had at first agreed to do.</p> <p>4. Statements of plaintiff’s counsel, made in opening the case to the jury on a former trial, are not admissible on the second trial as admissions binding the plaintiff.</p> <p>5. An answer of plaintiff to the general question whether, if counsel made such statements, he did not do so because of something witness had told him in regard to the case, is properly excluded.</p> <p>6. Whether plaintiff may be asked if he did not make a particular statement to his counsel, it not being a privileged communication,— quaere.</p> <p>7. A request for an instruction that the jury “ are not authorized to find, except upon clear and convincing proof,” etc., is properly modified by inserting, “except upon a fair preponderance of the proof,” etc.</p> <p>8. The court properly refused to instruct the jury that they were not to consider whether or not the defendant owed the original contractor, or had paid him in full, on his contract.</p>

<p>Certiorari to Kent. (Adsit, J.)</p> <p>The facts are stated in the opinion.</p>

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

<p>Bills and notes — Bona fide purchaser.</p> <p>1. That another had actual knowledge can only be shown by proof of facts from which such knowledge may be fairly inferred.</p> <p>3. The non-performance by the payee in a note of an agreement in consideration of which the note was given will prevent a recovery on the note by any one not a bona fide holder of the paper for value; citing Sutton v. Beckwith, 68 Mich. 303, 310.</p> <p>3. There was some evidence to support the finding of the jury that the plaintiff had knowledge of such facts and circumstances, at the time of her purchase of the note sued upon, as made such purchase, with the intention of enforcing it, an act ■ of bad faith on her part.</p>

<p>Application for an order requiring the respondent to deliver to petitioner sufficient of the securities deposited with him as security for policy-holders to pay petitioner’s death claims, and also to deliver the surplus of such securities over and above the remaining risks of petitioner.</p> <p>The facts are stated in the opinion.</p>

(Reilly, J.) • Bill to cancel a deed, and for a reconveyance. Com-'plainant appeals. The facts are stated in the opinion.

<p>Banks and banking — Title to deposits — Assignment—Interpleader —Estoppel.</p> <p>1. An order by a depositor on the treasurer of a savings bank, to allow the depositor’s wife, naming her, to sign the bank’s books, and to draw any and all money standing in his name as a depositor, is upon its face no more than an authority to the wife to receive money for the depositor.</p> <p>2. Where an order is given by a depositor which, upon its face, only authorizes his wife to draw money for him, and after his death his administrator claims the money, and the administrator of his wife’s estate claims it on the ground that the order was given under such circumstances as to transfer the title of the money to the wife, a bill of interpleader may be filed by the bank to settle the rights of the respective , claimants.</p>

(Buck, J.) Bill to restrain the prosecution of a suit at law. Defendant Michigan Trust Company appeals. .The facts are stated in the opinion, and in 91 Mich. 429.

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

<p>'Certiorari' to recorder's court of Detroit t.O' review a. • •street-opening proceeding. (Chambers, J.)</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Macomb. (Canfield, J.)</p> <p>Bill for an accounting. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Error to St. Clair. (Mitchell, J.)</p> <p>Ejectment. Defendants Bernhard Buschman and HenryAhrens bring error.</p> <p>The facts are stated in the opinion.</p>

Exceptions before judgment from Van Burén. (Buck, J.) Respondent was convicted of selling fermented cider in violation of tbe local option law. Tbe facts are stated-in the opinion.

(Grove, J.) Bill to enjoin the erection and maintenance of a fence. Defendant appeals. The facts are suf» ficiently stated in the opinion and in the foot-note.

<p>Highways — User—Abandonment—Fencing by railroad companies.</p> <p>An unrecorded road, laid out and constructed by a township, and actually used for eight years, becomes a public highway, under How. Stat. § 1315; and its non-user for two years, in the absence of any proceedings to discontinue it, will not .entitle a railroad company to exclude the public by fencing in its right of way at that point.</p>

<p>Highways — Dedication and acceptance — Estoppel.</p> <p>The purchaser of a lot abutting- on a street, designated as such on a plat made by the original land-owner, and opened and used by the public, and on which highway labor has been performed, such purchaser having derived his title through mesne conveyances from said land-owner, in all of which the lot is described as a part of said plat, cannot, in an action involving the existence of such street, question the validity of the plat on the ground that the required statutory certificate was signed and acknowledged by an attorney in fact of the landowner, and that the plat and certificate do not conform in other respects with the statutory requirements.</p>

<p>Appeal from Manistee. (Judkins, J.)</p> <p>Bill to restrain tbe use by defendant Sands of complainant’s electric-light poles. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Contract — Sale of lands — Fraud—Rescission—Waiver.</p> <p>1. A completed contract for the purchase of land cannot he said to have been made by an acceptance in writing of a refusal of the land at a stated price, but without agreeing as to the time and terms of payment, or upon other matters subsequently' incorporated in a written agreement.</p> <p>2. Where a purchaser of land desires to rescind the contract on the ground of the alleged false representations of the vendor as to the quantity of timber thereon, it is his duty, upon discovering the facts, at once to announce his purpose to rescind, and to adhere to it.</p>

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

<p>Appeal from Kent. (Montgomery, J.)</p> <p>Bill in aid of execution. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Log-lien proceedings — Jurisdiction—Estoppel.</p> <p>•1. A justice of the peace acquires no jurisdiction to issue an attachment in a log-lien suit unless the affidavit for attachment is filed on the same day the writ is issued; city McPherson v. McGillis, 93 Mich. 525.</p> <p>. 3. There can be no estoppel where one is not deceived or misled, but acts upon his own judgment, and with knowledge of the facts; citing Story, Eq. Jur. § 1544; Fletcher v. Circuit Judge, 81 Mich. 193.</p>

<p>Waters and water-courses — Dominant and servient estates — Surface water — Prescription—Pleading—Evidence—View of premises by jury.</p> <p>1. The natural flowage of water from the upper estate is a natural servitude which the owner of the lower estate must bear; citing Boyd v. Conklin, 54 Mich. 583.</p> <p>2. Where the owner of the lower estate permits, for more than 20 years, the natural flowage of water from the upper estate to pass onto his land through a ditch constructed for that purpose with his acquiescence, the owner of the upper estate acquires a right by ’prescription to have the water from his land pass through the ditch; citing Gregory v. Bush, 64 Mich. 37.</p> <p>3. Under a declaration alleging a natural flowage of water from plaintiff’s lands over those of the defendant, and that plaintiff has a lawful easement and right of way for that purpose, and setting forth the facts upon which the right is claimed, and framed upon the theory that there was an original channel, which had been widened and deepened, and used for more than 30 years prior to the obstruction of such flowage by the defendant, a recovery can be had upon proof showing a natural, well-defined water-course, or an artificial one to which the plaintiff had obtained a right by user, or a natural flow of water over the land without a channel, natural or artificial.</p> <p>4. Photographic views of a culvert and the land in its vicinity, taken over a year after the alleged unlawful obstruction of the flowage of water therein, and offered in evidence upon the trial of a suit for such obstruction, without proof. of their accuracy, are properly rejected.</p> <p>5. A defendant, in a suit for his alleged unlawful obstruction of the flowage of water from plaintiff’s land onto defendant’s, cannot assign error upon the refusal of the court to order the jury to view the premises, the making of such an order being discretionary with the court.</p>

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

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

(Stone, J.) Bill to enjoin the prosecution of summary proceedings to recover the possession of land, and for a conveyance’ of fhe land to complainant. Complainant appeals. The facts are stated in the opinion.

<p>Quieting title — Deed from trustee — Fraud—Void tax titles— Defenses.</p> <p>A deed from a trustee, to whom the land was conveyed in trust for creditors, conveys the legal title; and a claimant under a void tax title is not in a position, in a suit brought by the trustee’s grantee (who is in possession under his deed) to set aside said tax deed, to defend on the ground that no settlement was ever made with the creditors.</p>

<p>Equity jurisdiction — Trust funds — Accounting.</p> <p>Complainant’s bill is held to make a case in which the equities between the parties cannot be properly settled in a court of law, defendant Seymour having the right to have the ownership of the fund ascertained before he is compelled to pay it over.</p>

<p>Equity pleading — Bill in aid of execution.</p> <p>A bill filed in aid of execution, which charges that the judgment debtor “ has no real or personal estate liable to levy and sale, except the premises aforesaid, on which the sheriff could make a levy,” the land having been fully described in the bill, sufficiently states his insolvency.</p>

(Grove, J.) Bill to enjoin the sale of land on execution. Defendants Munro and Neenan appeal. The facts are stated in the opinion.

<p>Ejectment — Defenses—Res judicata.</p> <p>“Where after a recovery in ejectment by a widow of her dower in land occupied jointly by the holder of the record title and a brother, who were joined as defendants, the widow secures a partition of the land through a suit instituted for that purpose, in which the brother and sister are ruade defendants, the brother cannot defend in a second action of ejectment, brought by. the widow to recover the land set off to her as her dower in the partition proceedings, on the ground that he had homestead rights in the land, and that his wife was not joined as a defendant in the first ejectment suit.</p>

<p>Partition — Tenants in common — Bes judicata — Adverse possessioi —Improvements—Parol trust.</p> <p>1. In a partition suit it is immaterial whether the tenants in common are parties complainant or defendant; and when their rights have been determihed by the decree they are res judicata, and can only be reviewed upon appeal.</p> <p>2. The payment of taxes and making of improvements by one tenant in common, while in the joint possession of the land with a co-tenant, who holds the record title, are no evidence of adverse possession or of an adverse claim, or of the actual ouster required by How. Stat. § 7812, and which is necessary to set the statute of limitations in operation; citing Campau v. Campau, 44 Mich. 31; Fenton v. Miller, 94 Id. 204.</p> <p>3. The wisdom of How. Stat. § 6179, voiding a secret trust resting entirely in parol, cannot be better exemplified than by the present, case, where one is seeking to set aside the muniments of title after the expiration of more than 20 years, and after the death of all the other parties to the transaction, by parol statement,- in contravention of his own solemn deed.</p> <p>4. The defense that one tenant in common is entitled to the value of improvements made by him should be made when a suit is brought, to partition the land, when, if it is available, each owner can be decreed to pay his or her proportionate share.</p>

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