Volume 96 — Michigan Reports

Exceptions before judgment from Hillsdale. (Lane, J.) Respondent was convicted of keeping á saloon open on Sunday. The facts are stated in the opinion.

(Canfield, J.) Appeal from the disallowance of a claim against the •estate of decedent. The executor brings error from a judgment of' allowance. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to vacate an order admitting a will to probate. The facts are stated in the opinion.

Clair. (Canfield, J.) Bill to declare taxes paid by the owner of the reversion a lien upon the estate of a life-tenant. Defendant appeals. The facts are stated in the opinion.

<p>Ejectment — Declaration—Amendment—Nonsuit—Execution sale— Statute of limitations.</p> <p>1. It is error to refuse to allow a plaintiff in ejectment to amend his declaration, after issue is joined on the merits, by setting forth the estate which he claims in the land.</p> <p>2. Where a plaintiff in ejectment has been denied the right to amend his declaration by setting forth the estate he claims in the land, it is error to refuse to permit him to submit to a nonsuit.</p> <p>3. An execution cannot be issued and a levy made after a right of action on the judgment is barred by the statute of limitations; citing Jerome v. Williams, 13 Mich. 526; Parsons v. Circuit Judge, 37 Id. 287.</p> <p>4. A lien upon real estate by virtue of a levy under an execution is not lost by delay in proceeding to a sale, where no fraudulent purpose is shown on the part of the judgment creditor; citing Ward v. Bank, 46 Mich. 332.</p> <p>5. Where proceedings for sale under an execution levy are instituted before a right of action on the judgment is barred by the statute of limitations, a sale thereafter made in pursuance. of such levy is valid.</p>

<p>Fire insurance — Contract—Recalling policy.</p> <p>Where a policy of insurance sent to an agent without an application by the insured therefor, but with the expectation that the agent will tender it to the insured in renewal of a policy which has expired, reaches the agent on Sunday, and after the destruction of the property on the previous day, and the agent who forwarded the policy telegraphs on Sunday to the agent to whom it was sent not to deliver it, to which he answers, “all right, will return,” which facts he communicates to an agent of the insured on the same day, who notifies the agent on the following day to hold the policy, which is not done, and on the fourth and fifth days thereafter the agent of the insured demands the policy, on which latter day the premium is for the first time tendered, no valid contract of insurance is made.</p>

<p>Statute of frauds — Promise to pay the debt of another — Estoppel.</p> <p>1. Where at the request of contractors who are unable to procure the materials called for by their contract, which provides that in case they neglect to supply such materials the owner of the building to be erected may do so, and deduct the cost of the same from any moneys due or to become due the contractors, the owner of the building agrees to pay the material-men for all materials thereafter furnished, his agreement is not within* the statute of frauds.1</p> <p>2. The fact that the material-men still make a claim against the contractors for the value of the materials furnished under said agreement, and seek to enforce the same by suit against them and by garnishment proceedings, will not affect their rights in a suit brought' against the owner upon said agreement; nor will the recovery of a judgment agaiiist the contractors bar plaintiffs’ claim against the owner, unless the judgment is satisfied.</p>

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

<p> Mandamus. </p> <p>Relator applied for mandamus to compel the board of supervisors of Montmorency county to reconvene, and canvass the votes cast ujoon the question of the removal of the county-seat, and determine the result; and an order was granted on the prayer of the respondents, requiring the inspectors of election of certain townships, who are charged in the answer with fraudulently omitting to make true and correct returns, to show cause why they should not be compelled to make such returns. The facts are stated in the opinion.</p>

Mandamus. Eelators applied for mandamus to compel respondent to pay their salaries as deputy clerks of the justices’ courts ■of Detroit. The facts are stated in the opinion.

<p>Appeal from Berrien. • ((BHara, J.)</p> <p>Bill to establish and foreclose a vendor’s lien.</p> <p>The facts are stated in the opinion.</p>

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

<p>Mortgage foreclosure — Appeal—Weight of testimony.</p> <p>The conclusion of the circuit judge is held to have been warrantee® by the evidence, and the decree is affirmed.</p>

<p>..Husband and wife — Joint mortgage — Survivorship—Reformation of securities.</p> <p>1. The doctrine that where land is conveyed to a husband and wife jointly they take by entireties, and on the death of either the survivor takes the entire estate, does not apply to a purchase-money mortgage given to them jointly on the sale of land owned by the husband; citing Wait v. Bovee, 35 Mich. 425.</p> <p>:B. The decree below, reforming a mortgage given to a husband and wife jointly so as to make the income therefrom payable to the wife during her life-time, if she survives her husband, is affirmed; it appearing that such was the intent of the parties, and that by mistake the mortgage did not'conform to such intent.</p>

<p>Taxes — Fraudulent transfer — Replevin.</p> <p>A vendee who claims under a pretended sale, made without consideration, and for the express purpose of defeating the collection of a tax from the vendor, cannot maintain replevin for the property, the possession of which has been retained by the vendor, against a tax collector who has seized it to satisfy the tax.1</p>

Application by the Attorney General for leave to file an information in the nature of a quo warranto against the respondent. The facts are stated in the opinion.

<p>Specific performance — Parol evidence — Contract by correspondence..</p> <p>1. Where a contract is made by correspondence, the intent of the-parties must be gathered from the whole thereof; citing Francis■ v. Barry, 69 Mich. 313.</p> <p>2. Where, in a suit to enforce the specific performance of a contract for the sale of mineral lands, it appears that the contract was made by conversations between the parties, in which it was understood that the stone on the lands valuable for building purposes was to be reserved, and by after-correspondence-in which said reservation was referred to, the correspondence must be interpreted in the light of the conversations, evidence-of which is admissible; citing Loud, v. Campbell, 26 Mich. 239;. Richards v. Fuller, 37 Id. 161; Phelps v. Whitaker, Id. 72;. Bailey v. Cornell, 66 Id. 107.</p>

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

<p>Error to Marquette. (Stone, J.)</p> <p>Claim against the estate of decedent. Claimant brings error.</p> <p>The facts are stated in the opinion.</p>

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

<p> Notice. </p> <p>1. Actual knowledge, however acquired, dispenses with the necessity for notice.</p> <p>2. Such facts must he made to appear in order to dispense with the necessity for notice as will warrant a jury in believing that the party had actual knowledge.</p> <p>3. This case is ruled in the main by Tousignant v. Iron Co., 'Unte, 87.</p>

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

<p>Contract — Construction—Breach—Damages.</p> <p>1. A provision in a logging contract by which the contractor agrees-. to cut, under the direction of a scaler to be furnished by the log-owner, and haul and bank on a certain river, all of the timber on certain lands by April 1 of' the following year, and deliver the logs into the main jam at the mouth of the river during the driving season of that year, does not give the log-owner the right to order the contractor to stop cutting logs when, in the opinion of the scaler, he has as many cut as he can get out and deliver during said driving season.</p> <p>2. A mere request by the log-owner to the contractor to quit cutting logs, if acquiesced in by the contractor, does not amount to a breach of the contract on-the part of the log-owner; but-a direction by the log-owner to stop cutting, which the contractor obeys under protest, amounts to a breach, entitling the contractor to the consequent damages.</p> <p>If, after such direction, the contractor continues cutting timber, but is prevented from completing the same by reason of such breach, the log-owner, in a suit brought by the contractor-upon the contract, can recoup the damages sustained by reason of the failure of the contractor to deliver the logs so cut, such failure not being occasioned by the prior breach by the log-owner.</p>

<p>Domestic corporations — Attachment.</p> <p>1. A writ of attachment may issue against a domestic corporation, in the county where its home office is located, in favor of a creditor who resides in that county, in the like cases as in suits between individuals. *</p> <p>2. Prior to the passage of Act No. 242, Laws of 1887, no substituted service of process could be made upon a domestic corporation in any county other than that in which its home office was located; citing Insurance Co. v. Circuit Judge, 23 Mich. 492.</p> <p>3. How. Stat. § 8137, as amended by Act No. 242, Laws of 1887, gives a remedy by attachment against domestic corporations, other than railroad and navigation companies, in all cases where the plaintiff resides in a county other than that in which the home office is located, in case property can be found hable to attachment therein.</p> <p>4. The true construction of How. Stat. § 7987, which provides, as one of the grounds for an attachment, that the defendant is a foreign corporation, is that while, as against foreign corporations, that fact alone is sufficient to authorize the issuance of the writ, some other of the statutory grounds must be set out in the affidavit in the case of a domestic corporation.</p>

<p>Error to Iosco. (Simpson, J.)</p> <p>Beplevin. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

(Hart, J.) Respondent ivas convicted of an assault with intent to-commit the crime of rape, and sentenced to imprisonment, in the State prison for five years. The facts are stated in the opinion.

Mandamus. Belator applied for mandamus to compel respondent to-appoint commissioners on claims in the matter of the estate of Harriet J. Comstock, deceased. The facts are stated in. the opinion.

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

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Complainant filed a bill for divorce, which was granted, and subsequently set aside on petition of defendant. Anna E. Carlisle, the second wife, intervened, and on her petition the order vacating the decree was set aside, from which defendant appeals.</p> <p>The facts are stated in the-opinion.</p>

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

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

<p>Public lands — Grant to railroad — Selection—Evidence—Certification of copy of public record — Deed—Identity of party — Practice in Supreme Court — Ejectment—Taxes—Sale— Validity of deed.</p> <p>1. The effect of the act of Congress of June 3, 1856, granting certain lands to the State of Michigan to aid in the construction of a railroad from Amboy, via Hillsdale and Lansing, to some point on ornear Traverse Bay, and of the acceptance of the grant by the State, and of Act No. 126, Laws of 1857. granting said lands to the Amboy, Lansing & Traverse Bay Railroad Company, lias been settled by this Court, so far, at least, as to determine that the title of the United States to the lands-was divested, and that, when earned, the railroad company might select any land within the prescribed limit of 6 miles, if not 15 miles; citing Johnson v. Ballou, 28 Mich. 379.</p> <p>2. The appointment by the Governor of the agent nominated by the railroad company to select its lands, the filing of the list of lands so selected with the Commissioner of the State Land Office, the certification of the same by the commissioner to the Secretary of the Interior, and the approval by that officer of such selection, are, in the absence of any proof to the contrary, prima facie evidence of the compliance by the railroad company with the statutory requirements to the satisfaction of' the Federal and State governments.</p> <p>3. The act did not expressly require the preservation or filing with the State or Federal departments of any selection or report of the agent appointed to select lands for the company, and the lands described in the list filed by the company with the State Land Commissioner, certified by him to be a true and correct list of the lands selected by the agent, and approved by the Secretary of the Interior, may be assumed to have-been properly selected.</p> <p>4. The certificate of the Commissioner of the General Land Office that an annexed paper is a copy of a list of lands on file in his office, so far as the same applies to certain descriptions, contained therein, makes the paper admissible in an action of ejectment involving the particular descriptions certified to, although not authenticated according to our statutes; citing Lacey v. Davis, 4 Mich. 150; Oilman v. Biopelle, 18 Id. 158.</p> <p>5. By asserting title in himself under a tax deed, the grantee asserts that the United States has parted with its title to the land.</p> <p>6. The fact of the identity of the name of the grantor in a deed under which a plaintiff in ejectment claims title with that of the grantee in a prior deed of the same land, no intervening conveyance being shown, raises a presumption of the identity of the grantor and grantee; citing Gooclell v. Hibbard, 32 Mich. 47; Eames v. McGregor, 43 Id. 313.</p> <p>7. An agreement between three persons, reciting the purchase by one of them of certain lands for the joint benefit of all, for a. specified sum paid by the one, and providing that all money advanced by each shall bear interest, and that each shall receive pay for all services rendered and expenses incurred in the matter of the purchase and sale of the lands, and that the one shall advance all moneys needed to pay all existing and future taxes thereon, and that whenever enough money shall have been received on sales made to repay the amounts advanced by the parties, with interest, the remaining lands shall be equally divided between them, creates only an equitable interest in the two, and, in the absence of proof of other right of possession in them, they are not proper co-plaintiffs with the one in an action of ejectment for the unsold land, which is wild and unoccupied.</p> <p>8. Ejectment lies against one who pays for, procures, and causes to be recorded a tax deed, under which he claims title on the trial; citing Anderson v. Courtright, 47 Mich. 161; Hoyt v. Southard, 58 Id. 433; Heinmiller v. Hathaway, 60 Id. 391; Murray v. Hudson, 65 Id. 674.</p> <p>'9. The holding in Demill v. Moffat, 45 Mich. 410, and in other cases,1 that the trial judge should clearly state the question of law upon which he directs a verdict, must be restricted to reasonable limits, and will not prevent the Court from examining the facts in the record in an ejectment suit in which the defendant claims title under a tax deed, issued on a sale ■of the land for the taxes of several years, and on the trial of which the circuit judge held the tax proceedings for each , year void, but failed to specify his reasons for so holding as to one of said years.</p> <p>10. If any portion of the taxes is void, a sale based thereon is void.</p> <p>11. The power of the township board to raise money for the contingent and poor funds of the township depends upon the neglect or refusal of the electors to vote to raise the same at the annual township meeting, who camiot be held to have refused or neglected so to do if the proposition to raise the money was not submitted to them.</p> <p>13. Where the amount charged against a parcel of land in the column headed “township tax” can be accounted for only by assuming that the general highway tax is included therein, contrary to law, a tax deed issued on the sale of the land to satisfy the taxes thus blended is void.</p>

<p>Street-railways — Negligence—Injury to child.</p> <p>1. Where a street-car driver permits a seven-year-old boy, who was upon the front platform with him when the car started, to remain there and ride for some distance, he has no right to order the boy to get off without giving him an opportunity to obey the order with safety.</p> <p>'■2. It is a question for the jury in such a case whether the driver was negligent if he ordered the boy to get off while the car was in motion, or whether he should have first stopped the car, and then given the order.</p>

<p>Partnership — Profit sharing — Liability to third parties.</p> <p>1. All of the authorities agree that profit sharing is evidence tending to show a partnership.</p> <p>2. To constitute one a partner as to third persons, it is not necessary that he should agree to share in the losses of the business; citing Sager v. Tupper, 38 Mich. 258, 265.</p> <p>3. Community of property, interest, and profits in a venture launched for the benefit of two persons makes them both principals, and whatever is done for their mutual benefit must be deemed to have been done by authority of both; citing Corey v. Cadwell, 86 Mich.- 670; Purvis v. Butler, 87 Id. 248.</p>

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

<p>Appeal from Bay. (Cobb, J.)</p> <p>Bill to enforce a mechanic’s lien.</p> <p>Affirmed. The facts are stated in the opinion.</p>

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

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill to restrain the statutory foreclosure of a mortgage. Defendant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Newaygo. (Palmer, J.)</p> <p>Bill to set aside certain deeds.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Relators applied for mandamus to compel respondents to allow a certain account. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel the issuance of a liquor license. The facts are stated in the opinion.

<p>Principal and agent — Contract—Breach—Damages—Promise to indorse.</p> <p>1. The relation of principal and agent is not changed as between the parties, nor as between the principal and a third person, by the failure of the agent to observe secret instructions given him by the principal.</p> <p>2. An agent cannot be held as an indorser upon a mere promise to indorse, but, if the promise is made upon a sufficient consideration, an action may be maintained for its breach.</p> <p>3. Where an agent sells and delivers a machine without having a full settlement with the purchaser, and taking his notes for the purchase price, as required by the contract of agency and the instructions of the principal, the measure of damages, as against the" purchaser, is the price of the machine, and, as against the agent, compensation for the injury sustained by his failure to perform his agreement and follow the instructions given.</p> <p>4. The defendants, who were agents of the plaintiff for the sale of clover hullers, are held not to have made themselves liable for the value of a huller sold and delivered without securing the notes of the purchaser, and returned by the purchaser to the defendants, and, after being stored for a time, reshipped by them to the plaintiff, under the facts stated in the opinion, a reference to which is necessary to a correct understanding of the questions decided.</p>

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

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

<p>Killing trespassing dog — Damages—Justification.</p> <p>1. Dogs have a value, and are the property of the owner, as much as any other animal which one may have or keep; citing Ueisrodt v. Hackett, 34 Mich. 283.</p> <p>2. The fact that a dog is committing a trespass at the time it is killed, and is, in the opinion of the person who kills it, about to destroy some of his property, will not justify the killing, nor in any way mitigate the actual damages which the owner of the dog is entitled to recover.1</p> <p>3. Where the act or trespass complained of arises from willful and malicious conduct, exemplary damages are recoverable, — not as a punishment to the wrong-doer, but to compensate the injured party; citing Wetherbee v. Ch’een, 22 Midi. 311.</p>

<p>Costs — Judgment against sureties.</p> <p>Where a judgment in favor of a non-resident plaintiff, who haa given security for costs, is reversed, and the case remanded for a new’ trial, costs cannot be awarded under How. Stat. § 7663, against the surety;1 citing Ortmann v. Bank, 42 Mich. 464.</p>

<p>Error to Monroe. (Kinne, J.)</p> <p>Assumpsit. Defendant Peter 'Donnelly brings error. Reversed. The facts are stated in the opinion.</p>

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

<p>False imprisonment — Arrest zoithput a warrant — Probable cause— Pleading — Evidence.</p> <p>1. When the facts are conceded, probable cause is a question of law, which the court must determine; citing Perry v. Sulier, 92 Mich. 72; Huntington v. Gault, 81 Id. 155.</p> <p>2. When an officer in arresting fugitives from justice, and those who he honestly believes have been guilty of a felony, has acted in good faith, and after such an investigation as the circumstances .permitted him to make, he will be protected in his action, and relieved from the consequences of a false imprisonment.</p> <p>3. The defense that the defendant in a suit for false imprisonment, who arrested the plaintiff without a warrant, had probable cause to believe that he had been guilty of a felony, is inadmissible under the plea of the general issue, without notice of such special matter of defense.</p> <p>4. A newspaper article which states that the plaintiff in a suit for false imprisonment, and his companions, were very drunk when they boarded a street car, refused to pay then- fare, used vile language, which annoyed the passengers, refused to get off when requested, and showed fight when the conductor proceeded to put them off; that the motorman came to the conductor’s rescue, and knocked one of the men from the car, and the conductor ejected another; that one of them jumped on again, and was bl.eeding profusely, and using vile and filthy language; that when he refused to get off the conductor knocked him,from the car with a rock; that the passengers then commenced to jump from the car, one of whom, a lady, fortunately fell away from the car, and escaped death; and that the names of the men were not known to the police, but that they had a good description of them, and, unless they left the city, they would probably be identified, — does not show that the plaintiff and his companions had been guilty of a violation of How. Stat. §§ 9274, 9275 (which make it a crime for any person willfully and maliciously, by any act, or by means of intimidation, to impede or obstruct the regular operation and conduct of the business of any railroad company, etc., or for two or more persons willfully and maliciously to combine or conspire together for a like purpose), or of any felony whatever, and does not justify the arrest of the plaintiff without a warrant.</p>

<p>Adverse possession — Evidence.</p> <p>3. The divestiture of title to land upon no better claim than occupancy can be justified only by clear and cogent proof upon each of the essential elements of adverse possession; citing Yelverton v. Steele, 40 Mich. 538; Pendill v. Agricultural Society, 95 Id. 491.</p> <p>:2. It is the duty of courts to protect the rights of land-owners from the danger of capricious verdicts by refusing to allow a jury to consider the question of adverse possession until evidence sufficient to make a prima facie case under the rule laid down in Yelverton v. Steele, 40 Mich. 538, has been introduced.</p> <p>’3. Evidence that a defendant in ejectment entered into actual possession of the land in 1882, under a deed from the holder of void tax titles, and that his grantor, in 1861, arranged with a neighboring farmer to look after the land, and thereafter paid the taxes assessed thereon, and that the farmer drove his cattle to the land sometimes to pasture, and authorized others to cut grass thereon, it being wild and unfenced, and used by the cattle of the neighborhood as a common, and the grass being cut by any one who chose, without molestation, which supervision, such as it was, ended in 1876 or 1878, falls short of that “clear and cogent proof” necessary to divest the title to land by adverse possession.</p>

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

Exceptions before judgment from Marquette. (Stone, J.) Respondent was convicted of criminal libel under Act No. 310, Laws of 1885. Conviction set aside, and new trial ordered. The facts are stated in the opinion.

<p>Criminal law — Rape—Evidence—Instructions.</p> <p>1. One' who aids and assists another in committing the crime of rape is guilty of the main offense.</p> <p>2. The definition of a reasonable doubt, in language substantially like that used in People v. Finley, 38 Mich. 482, is approved.</p> <p>3. It is competent for the prosecution to ask the complaining witness in a rape case whether she believed that the respondent intended to kill her from threats which she has testified they, or one of them in the presence of the other, made; also, whether the intercourse, which is admitted, but is claimed to have been voluntary on her part, caused her pain; also, why she did not struggle against one of the respondents when he subjected her to such intercourse.</p> <p>4. The charge as set forth in the opinion is held to state the law applicable to the case correctly.</p>

Mandamus. Eelator applied for mandamus to compel respondent to vacate an order requiring relator to elect upon which, count of his declaration he would proceed. The facts are stated in the opinion.

Mandamus. Kelator applied for mandamus to compel respondent to vacate an order denying leave to relator to intervene in a certain suit. The facts are stated in tbe opinion.

Mandamus. Eelator applied for mandamus to compel respondent to approve his liquor bond. The facts are stated in the opinion.

<p>Error to Ingham. (Person, J.)</p> <p>Trover. Defendant brings error.</p> <p>Tbe facta are stated in the opinion.</p>

Mandamus. Kelator applied for mandamus to compel respondent to vacate an order granting a motion to set aside a judgment. The facts are stated in the opinions.

Mandamus. Relator applied for mandamus to compel respondent to rescind a resolution declaring James R. Champ entitled to a seat'on said board, and to admit relator as a member thereof. The facts are stated in the opinion.

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

<p>Railroad companies — Injury at crossing — Contributory negligence.</p> <p>1. Railway trains must run where the view is obstructed by cuts, embankments, trees, and other things; and he who does not choose to stop and listen, where he cannot see, must suffer the consequences of his own negligence.</p> <p>2. The plaintiff’s wife is held to have been guilty of such negligence in failing to stop her team, and look and listen for an approaching train, before attempting to cross defendant’s track, as to bar a recovery, it appearing that had she done so she could have seen the train when she was at a distance of from 18 to 20 feet from the crossing.</p>

Decree modified, and case remanded, for further proceedings according to the opinion. The facts are stated in the opinion, and in 94 Mich. 548.

<p>Arrest — False imprisonment — Probable cause — Identification— Evidence.</p> <p>1. Whether an officer is justified in making an arrest without a warrant, upon information that one has been issued for a respondent charged with adultery, whose photograph has been sent to the officer, and between which and the party arrested (who is found stopping at the same hotel where is a woman who is believed to answer the description of the one with whom the adultery is charged to have been committed), he discovers a resemblance, depends upon whether the resemblance is so striking as to be convincing to a man of ordinary prudence and good judgment, which question should be admitted to the jury.</p> <p>2. A prosecution for adultery can only be instituted in this State by the husband or wife of one of the adulterers, and, whatever suspicions an officer may have, he has no right to make an arrest for adultery, of his own motion.</p> <p>3. An officer who, through an honest mistake, and after such an investigation into the facts and circumstances as the particular case enables him to make, arrests a party upon a charge of felony, having reasonable grounds to suppose him to be the guilty party, and the one named in his warrant, is not liable, if he proves to be innocent, for the damages suffered in consequence of the arrest.</p> <p>4. An officer who makes an arrest upon a warrant, or upon knowledge that a warrant is out, of one whose person is unknown to him, and who can only act, if he act at all, upon photograph or description, or both, should be excused if he acts honestly and prudently, making such inquiry and examination as the circumstances afford him an opportunity to make.</p> <p>5. Where, in a suit for false imprisonment, the plaintiff, and the photograph upon the strength of which the arrest was made, are in court, it is error to permit the defendant to testify to the opinion of third persons, given after the arrest, as to the resemblance between the photograph and the plaintiff. .</p> <p>6. The advice of attorneys given after the arrest is no justification of the arrest, and, if admissible as bearing upon the question of subsequent detention, it should appear that it was predicated upon a full disclosure of all the facts, an examination of all the evidences of identification offered by the arrested party, and a disclosure of whatever suggestions were made by him regarding his identity.</p> <p>7. A plain, unvarnished account, published in a newspaper, of the fact of the plaintiff’s arrest, is admissible as tending to show the publicity given to the arrest, and the consequent injury.</p>

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

(Hooker, J.) Bill to enjoin the statutory foreclosure of a mortgage. Complainant appeals. Decree reversed, and one entered as prayed. The facts are stated in the opinion.

(Burlingame, J.) Respondent was convicted of soliciting certain females to-enter a house of ill fame for the purpose of becoming-prostitutes, and sentenced to confinement in the Detroit-House of Correction for four years. Judgment reversed, and new trial ordered. The facts are stated in the opinion.

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

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

<p>JRailroad companies — Injury to passenger — Alighting from moving car — Contributory negligence — Damages—Instructions— Special questions.</p> <p>1. It is error to instruct the jury in a negligence case that the plaintiff is entitled to recover the money she may have expended in an attempt to be cured of her injuries, in the absence of any testimony tending to show such expenditure.</p> <p>% While it is prima facie negligent for a passenger to attempt to alight from or to board a moving train, it is not in all cases negligence per se to attempt to do so.</p> <p>•3. If a passenger is, by the wrongful act of the carrier, placed in a position where, under a sudden impulse to save himself from serious inconvenience, he attempts to alight from a moving train, where the danger is not imminent, and where persons of ordinary care and caution would make the attempt, the question of his negligence in making the attempt is for the jury.</p> <p>4. It is not the duty of the court to submit mere questions of evidence to the jury for special findings, but the questions must be so framed as to call for an answer which may be controlling on the main issue.1</p>

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

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

<p> Res judicata. </p> <p>Where in a suit planted upon the theory that the complainant’s title to the land in controversy is valid, and that the title claimed by defendant is void, and creates a cloud upon that of the complainant, the reverse of said claim is found by the court, and a decree is made accordingly, that question is res judicata in an action of ejectment brought by the defendant against the complainant’s grantees, who purchased the land after the making of said decree.</p>

<p>Error to Wayne. (Reilly, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Bail — Action on bond — Surrender of principal.</p> <p>The right of special hail to surrender their principal expires eight days from the commencement of a suit upon the recognizance, after the timely and regular issuance, and return “not found,” of a body execution against the defendant; citing Begole v. Stimson, 39 Mich. 288; Koch v. Coots, 43 Id. 30.</p>

<p>Deed — Delivery—Intent.</p> <p>1. The question of the delivery of a deed to take effect presently is one of intent, to he established by the proofs.</p> <p>8. The proofs in this case are held to show that the grantor never intended to place her deed to the complainant beyond recall, and that she did recall and destroy it before conveying the land to the defendant.</p>

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

<p>Certiorari to Chippewa. (Steere, J.)</p> <p>Plaintiffs bring certiorari to review proceedings dissolving an attachment.</p> <p>The facts are stated in the opinion.</p>

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

<p>Novation — Evidence.</p> <p>1. Where there is some evidence justifying a finding that a novation has taken place, whereby the defendant has been released from liability, it is not error to submit that question to the jury.</p> <p>2. Where the owner of a vessel, after mortgaging it to secure the payment of his note, sells it to a third party subject to the mortgage, and the purchaser agrees to pay the note and mortgage as a part of the purchase price, and that the mortgagor shall be released from all further liability thereon, all of which is assented to by the mortgagee, a complete novation is effected.</p>

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

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

<p>Pleading — Amendment of declaration — New party.</p> <p>A declaration in a suit by a widow upon an insurance policy issued in her faYor upon the life of her husband cannot he amended on the trial by joining his daughter, to whom an interest in the policy had been assigned prior to her fathers death, as a coplaintiff.</p>

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

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

<p>Trial — Arguments of counsel.</p> <p>Where the attorney for the plaintiff in a negligence case against a city,' in his closing argument to the jury, in answer to a statement of the counsel for the defendant that the jury should not allow larger damages than the plaintiff had demanded in the claim1 presented to the common council, states that the city counselor had recommended to the council that a larger sum be paid, which statement is objected and excepted to, and is wholly unsupported by any evidence in the case, it is reversible error.</p>

(Daboll, J.) Respondent was convicted of the crime of incest, and sentenced to imprisonment in the State prison for 10 years. The facts are stated in the opinion.

Exceptions before sentence from Ionia. (Smith, J.) Respondent was convicted of engaging in the business of selling intoxicating liquors at retail without paying the required tax. The facts are stated in the opinion.

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

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

<p>Appeal from Wayne. (Gartner, J.)</p> <p>Bill for partition. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to St. Clair. (Canfield, J.)</p> <p>Negligence case. Plaintiff brings error.</p> <p>Tbe .facts are stated in tbe opinion.</p>

<p>Liquor traffic — Civil damage act — Evidence.</p> <p>1. The statute gives an absolute right of action to a wife against those who have cartsed or contributed to the intoxication of her husband which results in injury, and does not predicate her right of recovery upon knowledge on their part that he was a person in the habit of becoming intoxicated.</p> <p>2. The questions whether the plaintiff’s husband was intoxicated when he drank in defendant’s saloon, and whether he was killed by a railroad train, — his body being found after daylight on the railroad track, — and by reason of intoxication, are held to have been properly left to the jury.</p>

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

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

<p>Contract — Rescission.</p> <p>A party seeking to rescind an agreement on the ground of fraud or mistake must first place the other party in statu quo.</p>

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

(Brevoort, J.) Claim against the estate of a deceased person. The administratrix brings error. The facts are stated in the opinion.

<p>Judgment — Interest.</p> <p>1. The judgment in an action ex eontraetu may include interest on the amount of the verdict from the time of its rendition to the time of the entry of the judgment; citing How. Stat. § 1598.1</p> <p>2. It is error to enter a judgment, after the discharge of the jury, upon their verdict for a certain sum “and interest,” for an amount in excess of that sum and the interest accruing on the verdict up to the time of the entry of the judgment.</p>

<p>Divorce — Non-support—Cruelty—Condonation.</p> <p>1. The Court cannot declare the failure to change habits of frugality to habits of liberality, gross, wanton, or cruel.</p> <p>2. The act of a husband in striking his wife with his open hand upon her cheek is condoned by the wife’s seeking a reconciliation, and apparently living happily with her husband thereafter.</p>

<p>Change of venue — Petition—Discretion of commissioner.</p> <p>1. The statute (How. Stat. § 6495 et seq.) does not require that the application for the transfer of a suit, on account of the disqualification of the circuit judge, shall he verified, nor that it shall set forth that the judge of the circuit to which the suit is to be transferred is qualified to sit.1 H. The fact that another circuit judge is expected to hold a term of court in the county where the suit is pending does not affect the right or duty of the circuit court commissioner to act upon the application.</p> <p>3. The only matter left to the discretion of the commissioner, where the application sets forth a proper cause for removal, which is established by the proofs, is the circuit and county to which the cause shall be transferred.</p> <p>4 Such discretion cannot be said to have been abused by transferring the suit to a county in which the attorneys for both parties reside, instead of to an adjoining county, through which ■ the defendant’s railroad runs, and which can be more conveniently reached by the witnesses who reside in the county from which the transfer is made.</p>

<p>Error to Saginaw. (Gage, J.)</p> <p>Trespass. Defendant brings error.</p> <p>Tbe facts are stated in the opinion.</p>

<p> Mandamus. </p> <p>Delator applied for mandamus to compel the recording of a deed. The facts are stated in the opinion.</p>

(Judkins, J., presiding.) Bill to restrain the payment of moneys on a contract for a water supply for a village. The facts are stated in the opinion.

<p>Breach of promise of marriage — Evidence—Arguments of counsel.</p> <p>1. Where, in a suit for breach of promise of marriage, the defendant admits making an offer of marriage, which the plaintiff testifies she accepted, which is denied by the defendant, who testifies that she avoided a reply, the subsequent conduct of the parties is admissible as bearing upon the truth of their respective stories as to what occurred at the time the offer was made.</p> <p>2. -The answer of the plaintiff to a letter from the defendant, in which he stated that she had never answered his proposition by giving her consent or otherwise, and that he had concluded that she did not wish his company, and that he should live single the rest of his life, such answer stating that she thought he knew his proposition was accepted, and would not have him think otherwise for the world, and inviting him to come up that evening, as she would like to have a talk with him, is admissible in evidence in behalf of the plaintiff as a part of the res gestee.</p> <p>3. The jury must get the evidence from the lips of sworn witnesses, and not from the unsworn statements of the lawyers in the argument of the case.</p>

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

<p>Equity practice — Decree pro confesso — Bill of review — Recording laws — Bona fide purchaser.</p> <p>1. 'Ex parte proceedings by a complainant, taken after the defendant has entered his appearance and demanded a copy of the bill, but without giving notice to the complainant’s solicitor, and of which the defendant has no notice or knowledge until after a pro confesso decree has been taken for want of an appearance, are irregular and void.</p> <p>2. "Where a grantee records his deed before a mortgage given by his grantor on the purchase of the land has been recorded, of which mortgage he has notice, his grantee, who receives his deed after the mortgage has been recorded, takes his title subject to the equities of the mortgagee.</p> <p>8. A purchaser of land must ascertain at his peril whether a decree setting aside a prior mortgage was warranted or not, and he cannot claim immunity, as a bona fide purchaser, from the effect of a subsequent order setting aside the decree as unwarrantably entered; citing Ritson v. Dodge, 88 Mich. 463.</p>

Exceptions before judgment from superior court of Grand Bapids. (Burlingame, J.) Bespondent was convicted of an assault with intent to do great bodily harm, less than the crime of murder. The facts are stated in the opinion.

<p>Conditional sale — Grift—Replevin.</p> <p>1. An agreement for the leasing of a piano at an agreed monthly rental, and for its sale to the lessee at the expiration of the term of the lease upon payment to the lessor of a specified sum, merely gives the lessee the right to the use of the instrument on payment of the rent, with an option to purchase it on the terms stated.</p> <p>2. Where, in such a case, the administrator of the estate of the lessee pays the balance of the rent and the sum required to be paid to purchase the piano, and receives a bill of sale from the lessor, he can maintain replevin against the widow of the lessee, who claims the instrument as a gift from her husband.</p>

<p>Equity practice — Injunction—Demurrer—Mortgage—Fixtures.</p> <p>1. The raising of technical questions after a hearing upon the merits is not favored, and a bill will not be dismissed upon a demurrer clause in the answer unless it is fatally defective, and past remedy by amendment.1'</p> <p>2. While a preliminary injunction cannot properly be granted when the bill fails to allege the requisite facts upon the oath of the complainant, yet, if permitted to stand until the hearing, it should be perpetuated, if a basis for injunctive relief is established by the proofs.</p> <p>8. Where the owner of land, upon which he has erected a foundry and machine shop, mortgages the land without mentioning the machinery in the building, which is owned by him, and, so far as necessary, fastened to the soil or building, and which is adapted to the business for which the building was erected, the mortgage will be held to cover the machinery, such being the intention of the parties, as shown by the preponderance of the proof.</p> <p>1 See Zabel v. Harshman, 68 Mich. 270.</p>

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

<p>Municipal corporations — Defective sidewalks — Evidence—Assignments of error — Instructions to jury.</p> <p>1. It is competent for the plaintiff in a negligence case to show that another person was tripped, by a loose board in the same sidewalk upon which plaintiff was injured in like manner some eight months thereafter, as tending to show a long continuance of the defective condition of the walk, from which notice to the defendant might he inferred; it appearing that the walk had not been repaired up to the time of the accident to the plaintiff.</p> <p>2. An assignment of error based upon the refusal of the court to give the request, “In this case, your verdict will he for the defendant,” and in the same language, is not sufficient, under Supreme Court Rule No. 12, which requires assignments of error to he special.1</p> <p>3. It will not he assumed that the jury were led to disregard an instruction on the subject of contributory negligence because it was not repeated in connection with the instructions upon the question of notice.</p> <p>4. Error cannot be assigned upon the ground that an instruction which is correct in substance was not made more specific, a more particular instruction not having been asked for, nor any exception taken by which the attention of the court could have been called to the omission.</p> <p>5. Where the language used in the general charge is substantially like that of a request to charge, the court has a right to assume that it covers the question from the standpoint of the counsel presenting the request.</p>

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

<p>Mutual fire insurance companies — Withdrawal of member — Inability for subsequent assessments.</p> <p>A member of a mutual fire insurance company who surrenders his policy, under a clause of the charter providing therefor on the payment of his proportion of all assessments to which the company is then liable, remains liable to assessment for such obligations as might lawfully be made the subject of assessment at the time of such surrender, but not for losses arising subsequently from failures to collect, or from any other cause; citing Insurance Co. v. Spaulding, 61 Mich. 77.</p>

<p>Deed — Cancellation—Confidential relations — Undue influence — Burden of proof.</p> <p>1. The question in this case is held to he not whether the complainant was mentally competent to execute the deed sought to be set aside, but whether she intended at the time of its execution to mate a final disposition of the land conveyed to defendant, which latter question is answered in the negative.</p> <p>3. It is further held:</p> <p>a — That, under the circumstances of this case, the burden was upon the defendant to show not only that the complainant fully understood the terms, import, and effect of the instrument, but, if her intention was as expressed therein, to show that such intention was not produced by undue influence exerted by himself.</p> <p>b — That transactions of this nature are regarded by courts of equity with suspicion, and scrutinized with vigilance, the presumption being against their propriety; and it is the duty of courts to refuse judicial sanction to such an instrument until fully satisfied of the fairness of the transaction, and that it is the intelligent act of the person executing it; citing Seeley v. Price, 14 Mich. 541; Witbeck v. Witbeck, 25 Id. 439; Wartemberg v. Spiegel, 31 Id. 400; Barnes v. Brown, 32 Id. 146; Jacox v. Jacox, 40 Id. 473; Duncombe v. Richards, 46 Id. 166; Finegan v. Theisen, 92 Id. 173.</p>

(Kinne, J.) Trespass. Plaintiff brings error. The facts are stated in the opinion, and in the former report of the case.

Exceptions before judgment from the superior court of Grand Rapids. (Burlingame, J.) Respondent was convicted, under How. Stat. § 9306, of engaging in a prize-fight. The facts are stated in the opinion.

(Eclget, J.) Respondent was convicted of murder in the second degree, and sentenced to imprisonment in the State prison for 30 years. The facts are stated in the opinion.

(O’Hara, J.) Respondent was convicted of tbe crime of manslaughter, and sentenced to imprisonment in the State prison for 15 years. The facts are stated in the opinion.

(Moore, J.) Eespondent was convicted of the crime of rape, and sentenced to imprisonment in the State prison for sev^n years. The facts are stated in the opinion.

<p>IAbel and slander — Ambiguous article — Question for jury — -Member of board of supervisors — Compensation— Services on cmnmittee.</p> <p>1. Where the language of an alleged libelous article is ambiguous, and capable of being understood in an innocent and harmless, as well as in an injurious, sense, its true interpretation is for the jury; citing Lewis v. Chapman, 16 N. Y. 371; Edwards v. Chandler, 14 Mich. 471.</p> <p>3. How. Stat. § 503, which provides that each member of the board of supervisors of a county shall be allowed $3 per day for his services and expenses in attending the meetings of the board, and mileage as therein stated, and that said sum shall be in full for all services rendered and expenses incurred in attending the meetings of the board, and while acting upon any committee’ of the board during its session, and which makes it a misdemeanor to receive further or other compensation, fixes the . maximum amount that the members can receive for services rendered the county, and the board has no power to extend it beyond the statutory limit.</p> <p>8. It is unlawful for a supervisor to receive pay, as a member of a committee appointed by the board of supervisors, for services performed when the board is not in session.</p>

<p>Negligence — Keeping savage animals — Evidence.</p> <p>1. One who keeps an untamed and savage bear in grounds which he knows are frequented by citizens, with his acquiescence, is charged with a greater degree of care than if the locality were more private; and evidence of how the grounds are occupied and used is admissible, in a suit to recover for injuries received from being bitten by the bear, as bearing upon the question of the defendant’s negligence, and the alleged public character of the place.</p> <p>2. Evidence that a father orders and pays for supplies for a hotel, in which he keeps a saloon, and which he claims is run by his son, is admissible as tending to show the father’s proprietorship of the hotel.</p> <p>3. A witness who was shown a lease of a hotel from a father to his son cannot testify, in a suit in which the question of which is the proprietor is in issue, that they told him that the son ran the hotel.</p>

<p>Public records — Right to examine — Abstracter of titles.</p> <p>"d. The right to examine the records and files in the office of the register of deeds, and to make memoranda therefrom, for the purpose of making a set of abstract books, is established by Burton v. Tuite, 78 Mich. 363, 80 Id. 218.</p> <p>.3. In exercising this right, the register of deeds cannot be unduly annoyed by a large force, or by work at unseasonable hours, or by a monopoly of furniture, office room, or records to the exclusion of other persons, and he has the right to prescribe a reasonable use of the same.</p>

Mandamus. Eelators applied for mandamus to compel respondent to vacate an order permitting an appeal to be taken from an order admitting a will to probate. The facts are stated in the opinion, and in 95 Mich. 277.

<p>Change of venue — Disqualification of judge — Statutes.</p> <p>1. Where the showing made upon the hearing of an application for the transfer of a cause because of the disqualification of the circuit judge covers all of the statutory facts entitling the petitioner to such transfer, the officer to whom the application is made, as a general rule, is required to make the order asked for.1</p> <p>2. Act No. 30, Laws of 1891, which makes it the duty of the circuit judge of the sixteenth judicial circuit, as reorganized by said act, to aid and assist the judge of the thirty-first-judicial circuit in transacting its business so far as he can without detriment to the business of his own circuit, does not purport, in terms, to give him the right to sit in the thirty-first circuit for the purpose of hearing cases in which the resident judge is disqualified, and does not suspend the operation of the general statute providing for the transfer of such cases.</p> <p>3. Act No. 208, Laws of 1893, which purports to impose upon the circuit judge of the sixteenth judicial circuit the duty of holding court in the thirty-first judicial circuit whenever the resident judge is disqualified, and which prohibits the transfer of cases from either of said circuits on account of the disqualification of the judge thereof, unless both of said judges are disqualified or refuse or are unable to sit therein, does not apply to an application for a transfer which had been passed upon at the time of the passage -of the act.</p>

(Lane, J.) Bill to set aside a sheriffs deed on foreclosure, and to foreclose a mortgage. The facts are stated in the opinion.

<p>Error to Wayne. (Reilly, J.)</p> <p>Trover. Defendant brings error.</p> <p>Tbe facts are stftfed in the opinion.</p>

<p>Error to Cbippewa. (Steere, J.)</p> <p>Replevin. Plaintiffs bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Case made from Eaton. (Hooker, J.)</p> <p>Replevin. Plaintiff assigns error.</p> <p>The facts are stated in the opinion.</p>

<p>Municipal corporations — Defective sidewalks — Evidence—Exhibition of injury to jury — Statements of counsel.</p> <p>1. As showing the negligence of a village in permitting a sidewalk to be out of repair at the place where the plaintiff was. injured, it is competent for the plaintiff to show by the president of the village that he knew of the defect before the accident, and that by 20 minutes’ work it could be remedied, and that he communicated these facts to the village marshal; and the defendant cannot rebut the effect of this testimony by showing that the president did not give the like information to the chairman of the street committee.</p> <p>■2. The action of the court in permitting plaintiff to exhibit her injured limb to the jury as evidence of its then condition is sustained under Langworthy v. Township of Green, 95 Mich. 93, and Graves v. City of Battle Creek, Id. 266.</p> <p>3. A physician who bad examined plaintiff’s limb some time-before the trial was properly permitted to testify that, in his. opinion, a scar upon the other limb was the effect of the disease with which the injured limb was afflicted at the time of the trial, which disease the defendant claimed existed prior to the acbident, and which plaintiff contended was the result of the injury complained of.</p> <p>4. Counsel have the right, either before or after the testimony is given, to state so much of the law, as they claim it to be, sis may enable them to convey to the jury an intelligent idea of the force, effect, and bearing of the testimony upon their case; citing FosdicJe v. Van Arsdale, 74 Mich. 305.1</p>

Error and certiorari to the recorder’s court of Detroit. (Chambers, J.) Respondent was convicted of manslaughter, and sentenced to imprisonment in the State prison for 15 years. The facts are stated in the opinion.