Volume 98 — Michigan Reports

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

<p>Error to Kent. (Grove, J.)</p> <p>Assumjjsü. Both parties bring error. Affirmed. The facts are stated in the opinion.</p>

<p>Appeal from Hillsdale. (Lane, J.)</p> <p>Bill to set aside a deed. Defendant appeals. Decree affirmed. The facts are stated in the opinion.</p>

<p>Error to Muskegon. (Dickerman, J.)</p> <p>Assumpsit. Plaintiffs bring error. Keversed, and justice's judgment affirmed.' The facts are stated in the opinion.</p>

<p>Seal-estate brokers — Commission—Time of sale.</p> <p>1. The words “right away,” occurring in a letter from a landowner to a land broker, accepting an offer to purchase the land “if the sale is made right away,” are held to give the broker a reasonable time to bring about the negotiations with the proposed purchaser; and as to what was a reasonable time, under the circumstances, was for the jury.</p> <p>2. An arrangement by which two land brokers have authority to sell the same land, and one is to receive 1 per cent, commission in case of a sale by the other, cannot be construed as giving the other the right to sue for 2 per cent, commission on making a sale.</p> <p>8. Where the interviews of a land broker with a proposed purchaser, who knew before examining the premises that the broker had them for sale, grew out of such agency, his conduct in securing the offer of purchase, and reporting it to the owner of the property, will not bear the interpretation that he was acting as agent for such purchaser, instead of the owner.</p>

<p>Quitclaim deed — Failure of title — Fraud—Right of action.</p> <p>1. In the conveyance of title by quitclaim deed, there must be an intentional concealment of facts, or an actual and intentional fraud, on the part of the grantor, to entitle the grantee to recover the purchase price.</p> <p>2. No recovery can be had upon a declaration which alleges that the defendant assured the plaintiff that he had the title to. certain land conveyed by him to the plaintiff by quitclaim deed, and promised to convey to plaintiff a good and sufficient title; that plaintiff relied upon such assurances and promises in making the purchase; that the defendant had no title to. the land, and that the money paid therefor, and to recover wliich the suit is brought, was paid without consideration,— the same not being based upon fraud, but upon a failure of consideration.</p>

<p>Error to Saginaw. (Gage, J.)</p> <p>Despondent was convicted of the crime of burglary, and sentenced to imprisonment in the State prison for five years. Judgment affirmed. The facts are stated in the opinion.</p>

(Chambers, J.) Respondent was convicted of larceny, and sentenced to imprisonment in the State prison for five years. Judgment affirmed. The facts are stated in the opinion.

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

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

<p>Schools and school-distHcts — Employment of teacher — Validity of contract — Breach—Damages.</p> <p>1. A contract with a qualified teacher, made pursuant to a resolution adopted by a majority of the trustees of a graded school-district, and signed by the moderator and assessor and one of the trustees, is valid, tllougli not signed by the director; citing Crane v. School-Dist., 61 Mich. 299.</p> <p>2. The board of trustees of a graded school-district has power to employ a legally qualified teacher for the ensuing year prior to the annual school meeting (Tappan v. School-Dist., 44 Mich. 500; Cleveland v. Amy, 88 Id. 374); and it is not within the power of a subsequent board to rescind the contract, without some valid reason.</p> <p>8. An objection to the introduction of certificates, purporting to have been issued to a teacher by the secretary and chairman of the board of school examiners, as incompetent evidence,, cannot be enlarged in the Supreme Court into an objection that no proof was made that the certificates were signed by such officers.</p> <p>4. If the board of trustees of a graded school-district sees fit illegally to rescind a contract made with a qualified teacher, and to refuse to allow her to perform the same, the burden of proof is cast upon the district, in a suit by the teacher to recover the agreed salary, to show that she seoured, or might have secured, similar employment.</p> <p>5. The law does not require a teacher who is employed to teach in. a graded school, and whose contract is illegally rescinded by the board of trustees, and who is prevented from performing the same, to seek or accept service in ordinary district schools.</p> <p>6. Where, in such a case, the teacher is taking her vacation for rest and recreation when the contract is rescinded, she cannot legally be called upon to abandon it, and seek employment for the coming year, and she is justified in notifying the district that she will insist upon her contract, and be ready at the proper time to perform it.</p> <p>7. Where, in such a case, the certificate held by the teacher showed that she had passed an examination, and was qualified to teach in defendant’s school, in which she had taught for some time, and both she and the old board were familiar with the course of study therein, the new board cannot rescind the contract on the ground of plaintiff’s alleged- incompetency, it not being Claimed that the old board was not aware of plaintiff’s qualifications when the contract was made.</p>

<p>Appeal from Jackson. (Peck, J.)</p> <p>Bill to foreclose a mortgage. Defendant Gates appeals. Decree affirmed. The facts are stated in the opinion, and in Gates v. Cornett, 72 Mich. 420.</p>

Mandamus. Eelator applied for mandamus to compel respondent to hold valid an order of publication, and to proceed and hear the canse. The facts are stated in the opinion.

' (Hart, J.) Assuwpdt. Defendant brings error. Eeversed, and judgment entered for defendant. The facts are stated in the opinion.

<p>Error to Shiawassee. (Newton, J.)</p> <p>Ejectment. Defendant brings error. Reversed, and judgment entered for defendant. The facts are stated in the opinion.</p>

<p>Mortgage — Foreclosure—Lost note — Indemnity.</p> <p>The appellant, who purchased of his co-defendants the land covered by the mortgage sought to be foreclosed in this suit, subject to said mortgage, which he verbally agreed to pay, is held entitled to indemnity in substantial compliance with How. Stat. §§ 7518, 7519, which-authorize .the recovery of a judgment by the party claiming the amount due on a negotiable promissory note, lost while belonging to him, upon his executing to the adverse party a bond indemnifying hirp against all claims by any other person on account of said note.</p>

(Moore, J., presiding.) Bill to quiet title, and to restrain the prosecution of an action in ejectment. Defendant appeals. Decree reversed. The facts are stated in the opinion.

<p>Sale — Recoupment—Evidence.</p> <p>1. A case should be submitted to the jury upon the theory of both the plaintiff and defendant.</p> <p>%. The testimony of a witness who is not shown to be an expert, as to what is covered by telephone patents, is inadmissible.</p> <p>3. Where a verbal contract for the sale of telephones, and other appliances necessary to build a telephone line, includes a promise to employ necessary legal counsel, and defend and save the purchasers harmless against suits for an infringement of the patents of another telephone company, which promise is not kept, the purchasers, in' a suit upon the contract, should he allowed to recoup whatever damages, if any, they have sustained by reason of such breach, which damages can only be determined by the jury. •</p>

(Kinne, J.) Bill to remove a cloud from title. Defendant appeals. Decree reversed, and one entered here as prayed by defendant. The facts are stated in the opinion.

<p>Case made from St. Joseph. (Loveridge, J.)</p> <p>Garnishment proceedings. Plaintiff assigns error. Reversed. The facts are stated in the opinion.</p>

(Hosmer, J.) Bill to enjoin summary proceedings to recover the possession of land. Defendant appeals. Decree affirmed. The facts are stated in the opinion.

(Beach, J.) Assumpsit. Plaintiff brings error. Reversed, and judgment entered ' for plaintiff. The facts are stated in the opinion.

(O'Hara, J.) Summary proceedings to recover the possession of land. Defendant brings error. Affirmed. The facts are stated in the opinion.

(Burlingame, J.) Respondent was convicted of a violation of 3 How. Stat. 93146, and sentenced to imprisonment in the State prison for. eight years. Judgment reversed, and a new trial granted. The facts are stated in the opinion.

(Haire, J., presiding.) Bill to remove cloud from title. Decree overruling demurrer affirmed, and defendant given 30 days in which to answer. The facts are stated in the opinion.

Mandamus. Delator applied for mandamus to compel respondent to-file an information in the nature of quo warranto to test tbe title to the office of warden of the State House of Correction at Ionia. The facts are stated in the opinion.

<p>Deed — Condition subsequent — Restrictions upon use of premises— Intoxicating liquors- — Waiver by grantor.</p> <p>1. Restrictions in a deed upon the right of the grantee to sell intoxicating liquors on the premises are sustained upon the theory that a party has the right, in disposing of his property, • to prevent such a use by the grantee as might diminish the value of remaining land, or impair its eligibility for other uses; citing Watrous v. Allen, 57 Mich. 362; Smith v. Barrie, 56 Id. 314.</p> <p>2. If the grantor afterwards conveys an adjoining lot without such restrictions, and thus diminishes the value of the property cdnveyed to the first grantee, and impairs its eligibility for other uses, converting the locality into a saloon locality, he will not be allowed to insist upon the restrictions in the first deed; citing Dumber Co. v. Tremper, 75 Mich. 36.</p> <p>3. It is no answer to say that the omission of the restrictions from the second deed was a mistake, the consequences to the former grantee being the same, and no proceedings having been taken for its correction.</p>

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

<p>Sunday contract — Sale—Fraudulent conveyances — Replevin— Demand. ■</p> <p>1. A Sunday contract for the sale of goods is a prohibited transaction in Michigan, and a delivery of the goods on the following day, in order to make, a sale, must be accompanied by circumstances which in themselves supply the necessary elements of a contract, without depending upon the Sunday transaction for any essential; citing Tuclcer v. Mowrey, 12 Mich. 378; Benedict v. Baehelder,2& Id. 425; Allen v. Duffle, 43 Id. 1; Winfield v. Dodge, 45 Id. 355; Arbuchle v. Reaume, 96 Id. 243; WincheU v. Carey, 115 Mass. 560.</p> <p>2. Where the owner, pursuant to an agreement for the sale of goods made on Sunday, delivers them to the vendee on Monday, and they are subsequently attached at the suit of the vendor’s creditors, after which the vendor executes a bill of sale of the goods to the vendee, and the attachment is dismissed soon thereafter because founded upon a void affidavit, and the goods, which are in the possession of the officer, aré thén re-attached by him at the suit of the same creditors, the vendee can maintain replevin against the' officer without demanding the goods, and the bill of sale will not be presumed fraudulent as to creditors under How. Stat. § 6190, because of their non-delivery to the vendee.* 1</p>

<p>Fire insurance — Contract—Evidence—Pleading—Variance.</p> <p>1. The construction of oral testimony is for the jury, unless it be such that only one inference can be drawn from it.</p> <p>3. Where, in a suit upon an insurance policy, the question whether the plaintiff was or was not insured is one of law and fact, it is error to permit the plaintiff to testify that he believed, in good faith that lie was insured.</p> <p>3. A policy of insurance varying only from the one described in the declaration, which covers several items, in that but $100 is written upon a barn, while the policy counted upon calls for $100 insurance on said building, cannot be received in evidence under the pleadings without amendment.</p>

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

<p>Master and servant — Railroad companies — Defective appliances.</p> <p>Plaintiff, a locomotive engineer, was injured by a collision with flat cars, one of which reared, and struck the corner of the tank on the tender of the engine, and raised and slewed it around against the- engine cab, pinioning and injuring the engineer. The sole negligence charged was the failure properly to fasten the tank to the frame on which it rested. The testimony failed to show that, for all ordinary purposes, the tank 'was not securely fastened. And it is held that a verdict should have been directed in favor of the defendant.</p>

Mandamus. Kelator applied for mandamus to compel respondent to proceed with the hearing on an accounting. The facts are stated in the opinion.

(Diekerman, J.) Summary proceedings to recover the possession of land. Complainant brings error. Reversed. The facts are stated in the opinion.

<p>Railroad companies — Injury to employe — Fellow-servants.</p> <p>Plaintiff was a fireman on one of defendant’s passenger trains. While in the cab of his engine, and passing a freight train standing on a side track, he was struck and injured by the projecting limb of a tree on a flat car loaded with trees. The cab of the engine was safe, and a rale of the defendant, known to plaintiff, required the conductor of the freight train to inspect the flat car, and see that it was properly loaded, before receiving it into his train. And it is held that the case is ruled by Smith v. Potter, 46 Mich. 258, and Dewey v. Railway Co., 97 Id. 329, the negligence, if any, being the failure of the conductor to see that the car was properly loaded, or, if not, to reject it.</p>

(Smith, J.) Bill to foreclose a mechanic’s lien. Defendant McGibbon appeals. Decree reversed, and bill dismissed. The-facts are stated in the opinion.

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

Mandamus. Relator applied for mandamus to compel respondent, as chairman of the board of supervisors, to execute certain bonds. The facts are stated in the opinion.

<p>Malicious prosecution — Advice of counsel — Probable cause— Good faith.</p> <p>1. Whether one is safe in acting upon the advice of the prosecuting attorney in making a criminal complaint, though he fails to acquaint him with every fact bearing upon the offense, quaere.* 1</p> <p>2. An instruction, in a suit for malicious prosecution, that probable cause cannot exist where good faith is lacking, may be proper, if the case admits of the question.</p> <p>8. When a plaintiff in a suit for malicious prosecution is shown to have taken and appropriated to his own use property belonging to the defendant, proof of an attempt by the defendant to settle the matter and obtain his own does not of itself tend to show a want of criminal intent upon the part of the plaintiff, or a belief in his innocence upon the part of the defendant; citing Fagnan v. Knox, 66 N. Y. 525.</p>

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

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

<p>Partition — Decree—Parol evidence.</p> <p>Where the report of the commissioners and the decree in partition proceedings are silent as to any inequality in the division of the property, and the decree makes no provision for compensation therefor pursuant to How. Stat. § 7931, it will be presumed that no inequality existed, and said presumption cannot be overthrown by parol testimony in a collateral proceeding.</p>

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

<p>Attachment — Dissolution— Preservation of lien— Certiorari — Evidence.</p> <p>An alleged copy of á writ of certiorari issued to review proceedings resulting in the dissolution of an attachment, which is not attested by any public officer, is not of itself competent proof of the reinstatement of the attachment’ lien by the removal of the dissolution proceedings to the Supreme Court.</p>

(Simpson, J., presiding.) Bill to set aside certain deeds. Complainant appeals. Decree affirmed. The facts are stated in the opinion.

(Dickerman, J.) Attachment proceedings under the logdien law. Defendant Sullivan .Lumber Company brings error. Reversed. The facts are stated in the opiniqn.

Mandamus. Relator applied for maiidamus to compel respondent to order an issue framed to determine the liability of an insolvent banking corporation upon the claim of relator. The facts are stated in the opinion.

(Brevoort, J.) Appeal from the disallowance of a claim against the estate of a deceased person. Defendant brings error. Reversed, and no new trial granted. The facts are stated in the opinion.

<p>Error to Wayne. (Eeilly, J.)</p> <p>Appeal from the probate of a will. Contestants bring error. Affirmed. The facts are stated in the opinion.</p>

<p>Assumpsit — Costs—Charge to jury — Damages.</p> <p>1. The rule laid down in Stehetee v. Kimm, 48 Mich. 322, that it is not error for the trial, judge to inform the jury in an action for libel what amount of damages will carry (full) costs, does not apply to an action of assumpsit to recover for logs converted by the defendant.</p> <p>2. The owner of standing timber, who contracts for the sale and delivery of the logs to be by him cut therefrom, is not limited to a recovery of the contract price in an action of assumpsit brought to recover the proceeds of logs unlawfully cut from, said timber by the vendee, against the protests of the plaintiff.</p>

<p>Attachment — Sufficiency of affidavit — Publication of notice — Return of officer.</p> <p>1. The day allowed by How. Stat. § 7987, subd. 6, to intervene between the date of the jurat to an affidavit for attachment and the issuance of the writ, does not begin to run until after the expiration of the day upon which the affidavit is executed, and the writ may issue after the expiration of said intervening day.1</p> <p>2. How, Stat. § 8003, which authorizes the publishing in of a defendant in attachment if it appear by the return that he could not be found, does not contemplate a search in the sense that the sheriff must make a tour of the entire county to find the defendant, and a return that, after diligent inquiry, he is unable to find the defendant named in the writ, as therein commanded, is sufficient; citing Hitchcock v. Hahn, 60 Mich, 459.1</p> <p>8. Where the appraisals of attached property are referred to in and form a part of the return, they must be considered in connection therewith.</p> <p>4. A return by a sheriff to a writ of attachment, which commands him to seize the property of the defendant therein named, that by virtue of the command of the writ he has levied upon certain described property, sufficiently shows that the property taken belonged to the defendant.</p> <p>5. The lien of a plaintiff in attachment is not lost by the neglect of the sheriff to return the writ until the day after the return-day, and, if personal service has failed, proceedings to publish in the defendant, based upon such return, which shows the necessary statutory facts, may properly be taken.</p> <p>6. An affidavit that a notice in attachment has been published once in each week for six successive weeks, commencing August 81, and ending October 5, shows a sufficient publication, it appearing that the affidavit and the declaration were filed November 9; citing Colton <9. Rupert, 60 Mich. 318.2</p>

(Stone, J.) Appeal from tbe disallowance of a claim by commissioners in probate court. Claimant brings error. Judgment affirmed. The facts are stated in the opinion.

(Gartner, J.) Bill to set- aside a deed, and for the specific performance of contract. Complainants appeal. Decree reversed, and .one entered here for complainants, decreeing the title to be in complainant Sarah. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to enter an order restraining the use' of certain evidence, claimed to have been secured through an abuse of process. The facts are stated in the opinion.

<p>Motion by respondent for a stay of proceedings upon a judgment in quo warranto.</p> <p>The facts are stated in the opinion.</p>

<p>Error to St. Clair. (Vance, J.)'</p> <p>Assumpsit. Plaintiff brings error. Affirmed. The facts are stated in the opinion.</p>

(Dickerman, J.) Negligence case. Defendant brings error. Reversed, and no new trial ordered. The facts are stated in the opinion.

<p>Master and servant — Instructions—Fellow-servants.</p> <p>1. Where any one of fair intelligence and the requisite physical ability is competent to perform a certain class of work, an employer is not bound to inquire into the experience of an employé who is hired to perform such work, and who possesses those qualifications, or give instructions in regard to the work.</p> <p>2. Plaintiff belonged to a section gang of four men, including the foreman, and, while assisting in loading ties onto a hand car, was injured by some of the ties falling off and breaking his leg. There was no evidence tending to show negligence in the employment of any of the men. And it is held that the four men were fellow-servants, and that a verdict was properly directed in favor of the defendant.</p>

(Hosmer, J.) Negligence case. Defendant brings error. Reversed, and no new trial ordered. The facts are stated in the opinion.

<p>• Contract — Burden of proof — Evidence—Damages.</p> <p>1. Where, in a suit to recover damages for the failure of the defendant to deliver lambs purchased by the plaintiffs; the only-dispute qs to the terms of the sale is the time agreed upon for such delivery, the defendant claiming that it was fixed for an. earlier date than that alleged by the plaintiffs, and that they refused to receive the lambs at that date, the burden of proof is upon the plaintiffs to prove the contract as alleged by them ■ by a fair preponderance of the evidence, and a failure so to do will prevent a recovery.</p> <p>2. Plaintiffs may show the price of lambs at the time of the alleged breach in a city the market price of which controlled that of the place of sale, and with reference to which it was made.</p> <p>3. Market reports, as shown in a newspaper called the “Live Stock Review,” published in said city, showing the quotations on the day of the alleged breach, are admissible as tending to establish the market price of the property in dispute.1</p> <p>4. One of the plaintiffs testified on cross-examination that at the time of the purchase he made a memorandum of the contract, in the presence of the defendant, in a book in which he was accustomed to enter such purchases, and at the request of the defendant’s counsel he produced the book, and was cross-examined therefrom. And it is held that the book was admissible on his redirect examination, not as evidence of the contract, but as bearing upon the weight to be given to the-testimony of the witness.</p>

<p>Landlord and tenant — Liability for rent — Validity of lease.</p> <p>Where, pending a suit to recover rent, the lessee dies, and on the trial it appears that, after the lessee had entered upon a second term provided for in the lease, the lessor, under a provision giving him that right, sought to terminate the lease, but, on the claim of the lessee that he had entered upon another term, acquiesced in his continued possession of the leased premises, for which use and occupation the suit was brought, the court will not inquire into the validity of the lease, which is claimed by the administrators to be void, and to have been terminated by its terms before the commencement of the use and occupation sued for, but will leave that-question to be settled on the hearing in probate court of a contingent claim filed against the estate, based upon such lease.</p>

<p>Chattel mortgage — Notice—Priorities.</p> <p>1. How. Stat. § 6193, which voids unrecorded chattel mortgages as against th'e mortgagor’s creditors and subsequent good-fáith purchasers or mortgagees, unless accompanied by an immediate delivery and followed by an actual and continued change of possession of the mortgaged property, does not permit a transaction which is in substance a mortgage to have the effect of a sale, however disguised, to the prejudice of parties dealing with the debtor, in the absence of the statutory notice to such parties.* 1</p> <p>2. The intentions or suppositions of the parties to an instrument which is in effect a conveyance, to be defeated on the payment of certain indebtedness, as to who should be regarded as holding the title, cannot avail as against subsequent mortgagees in good faith, in the absence of the continued change of possession or notice required by How. Stat. § 6193.</p> <p>3. Plaintiffs’ mortgagor, who was indebted to the defendant in the sum of $947, was desirous of establishing a creamery, dairy, and commission business, and entei'ed into a contract with the defendant, by which, in consideration of his agreement to make advances to the amount of $1,000, including the existing indebtedness, he assigned to the defendant a contract for the purchase of the land on which he was erecting a building to be used in connection with the creamery business, and agreed to insure the building and its contents in favor of the defendant. The contract provided that the mortgagor should attend to the business for the benefit of the defendant, and according to his instructions, but in his own name, and turn over to the defendant the net proceeds thereof as often as requested, until the advances and interest thereon should be paid: It was further agreed that the land contract and buildings and improvements, and all apparatus, chattels, and merchandise used in connection with the business, were and should remain the property of the defendant until the mortgagor’s agreements were fulfilled, and that on suoh fulfillment the defendant should relinquish all his rights, title, and interest in said property to the mortgagor. The mortgagor continued to carry on the business, and for a portion of the time with a partner. He made purchases in his own name, added largely to the plant, bought and stocked a farm, and operated it in connection with the business, gave his individual notes, indorsed by others than the defendant, and made payments on the land contract, of all of which facts the defendant had notice. Plaintiffs’ mortgage was given 18 months after the execution of the contract, which was not filed in the proper office, and plaintiffs had no notice or knowledge of its existence. Plaintiffs replevied the mortgaged property from the defendant, who claimed ownership by virtue of the contract. And it is held that the contract was a security, merely, and that a verdict should have been directed in favor of the plaintiffs.</p>

<p>Municipal corporations — Defective sidewalk — Contributory negligence — Evidence—Privileged communications.</p> <p>1. While contributory negligence is not to be presumed from knowledge of the existence of a defect in a sidewalk, such knowledge enjoins upon the party possessing it a degree of care commensurate therewith.</p> <p>2. Where, in a suit for personal injuries received by falling upon a defective sidewalk, the testimony, if believed, shows that the walk was repaired and placed in a condition reasonably safe for public travel the day before the accident, it cannot be said that a sufficient length of time had elapsed from which notice of the defective condition of the walk could be inferred, nor that the city had had a reasonable time within which to repair the defect.</p> <p>8. How. Stat. § 7516, which provides that “no person duly authorized to practice -physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon,” does not disqualify a physician who treated a plaintiff in a negligence case for a prior injury, from which the plaintiff claims he had recovered at the time of the second accident, which is denied by the defendant, from testifying that plaintiff was not discharged from treatment by him, but that he refused to attend further because of the calling of another physician without his consent; the proposed testimony not disclosing any information acquired by tbe witness during his previous attendance, or that was necessary to enable him to prescribe for the plaintiff.* 1</p>

<p>Negligence — Street railways — Vicious horses — Injury to passenger— Evidence — Proximate cause.</p> <p>*1. The mere piling of dirt or clay on or near a street-railway track, for use in ballasting the track where it has been undermined by a washout, is not negligence on the part of the company; citing Cowan v. Railway Co., 84 Mich. 588; Zanger v. Railway Co., 87 Id. 646.</p> <p>2. It is the duty of a street-railway company to exercise reasonable care in selecting horses for use on its cars, and to take reasonable steps to ascertain whether they are safe for such use; and the company is chargeable with whatever knowledge a driver may have acquired.or discovered with respect to the character or disposition of the horses driven by him in the course of his employment, and before an accident caused by a breach of said duty.</p> <p>3. A witness who has driven a span of horses on a street railway both before and after an accident caused, as claimed, by the vicious character of the horses, may give his opinion as to whether they were safe for that kind of work; citing Lauglilin ' v. Railway Co., 62 Mich. 220; Woodbury v. City of Chvosso, 64 Id. 289.1</p> <p>4. The further testimony of the witness that the company, after the accident, separated the horses, is incompetent for the purpose of raising a presumption that they were vicious, and that proper care had not been taken in their selection; citing Woodbury v. City of Owosso, 64 Mich. 239; Polzen v. Morse, 91 Id. 208.2</p> <p>5. Where no exception is taken to the admission of incompetent testimony, and no error assigned upon the ruling admitting it, the Court will not pause to consider whether the error was one which worked prejudice, as, under its well-settled practice, the alleged error cannot be considered.</p> <p>6. Where a passenger attempts to escape from a street car which has run off the track, and, while alighting, is injured either by a kick from one of the horses or by jumping from the car, the fact that the passenger was riding upon the platform of the car at the time cannot be said to have been the proximate cause of the injury, it appearing that the like attempt to_ escape would have been made had she been inside the car, and that such attempt was in fact made by inside passengers.1</p>

(Palmer, J.) Assumpsit. Plaintiff brings error. Judgment reversed, and one entered in this Court for plaintiff. The facts are stated in the opinion.

<p>Railroad companies — Injury to passenger — Liability for negligence of engineer — Practice in Supreme Court.</p> <p>1. An order overruling a demurrer to a declaration is not reviewable until it has been followed by final judgment.</p> <p>2. The question presented by the demurrer in this case being one which might have been raised upon the trial, and the counsel for both parties having presented full briefs, the Court have thought best to pass upon the merits of the case.</p> <p>3. A railroad engineer who, in violation of the rules and regulations of the company, and without an order from the train dispatcher, attempts to run his engine from one station to another, and comes into collision with a train belonging to the same company, is still in the line of his employment, and the company is liable for the consequent injury to a passenger upon the train.</p>

(Judkins, J.) Bill to determine the rights of complainants in timber growing on certain lands. Complainants appeal. Decree reversed, and one entered in this Court for complainants. The facts are stated in the opinions, and in Benedict v. Torrent, 83 Mich. 181.

(Loveridge, J., presiding.) Bill filed to determine the right to the possession of ■church property, and to enjoin the defendants from excluding complainants from the use and enjoyment thereof. Defendants appeal. Decree reversed, and bill dismissed. 'The-facts are stated in the opinions.

(Gartner, J.) Appeal from the disallowance of a claim by an executor for extraordinary services. Claimant brings error. Affirmed. The facts are stated in the opinion.

<p>Bills and notes — Possession by adverse claimant — Bight of recovery —Lost instrument.</p> <p>1. The right of the payee in a note payable to his order, and unindorsed by him, to recover in a suit against the maker, could not be defeated at the common law by the fact that the note was in the possession of a third person.1</p> <p>2. Where, in such a case, the plaintiff is required to furnish indemnity, and does so before the close of the case, the defendant is fully protected, and it is no hardship to him to treat the note as a lost note, within the statute.</p>

<p>Motion by petitioner for a modification of the decree entered in the case reported in 97 Mich. 80.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Ottawa. (Padgham, J.)</p> <p>Replevin. Defendants bring error. Reversed. The facts are stated in the opinion.</p>

<p>Error to Lenawee. (Lane, J.1)</p> <p>Assumpsit. Defendant brings error. Keversed, and no new trial ordered. Tbe facts are stated in the opinion.</p>

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

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

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

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

<p>Railroad companies — Accident at crossing — Contributory negligence.</p> <p>1. The testimony of witnesses that they were giving attention to the approach of an engine, and were listening for the whistle, and that no whistle was sounded or bell rung, is positive and certain in its character, and, if believed by the jury, warrants them in finding that the signals were not given.1</p> <p>2. A driver who stopped his team when within 12 feet of a railroad crossing, and at a point from which, had he looked, he could have seen an approaching engine but for the smoke and steam emitted by another engine standing on a side track near by, which obstructed his view, and who testifies that he looked and listened, and neither saw the approaching engine nor heard the ringing of its bell or sounding of its whistle, cannot be said, as matter of law, to have been guilty of contributory negligence in attempting to make the crossing.2</p>

<p>Motion by respondents to vacate order for writ of prohibition against the procedure of the common council in the investigation of charges preferred by the mayor against the</p> <p>city counselor of Detroit.</p> <p>The facts are stated in the opinion, and in 97 Mich. 198.</p>

Information in the nature of quo warranto to test the title of respondent to the office of counselor of the city of Detroit. The facts are stated in 97 Mich. 198.

<p>[Two oases.]</p> <p>Will — Vested future estates — Contingent remainders — Sale by guardian.</p> <p>A testator, having divided a portion of his property among certain of his children, devised the remainder, subject to life-estates to his wife, and a son for whom no provision had been made, to the son’s children, and, in case of the son’s death without issue, to the testator’s heirs. The son had no children when the will was made nor when it became operative, but three were born to him after the death of the testator, to whom the life-estates were conveyed, whereupon, and during their father’s lifetime, their interest in the land was sold at guardian’s sale by order of the chancery court. The son died, leaving two of the children and the daughter of the third child as his sole heirs at law, after which the owner of the title conveyed by the guardian’s deed filed a bill against said heirs to quiet his title to the land. The heirs defended, and claimed that the only estate held by the three children by virtue of the will at the time of the execution of the guardian’s deed was a contingent remainder, and that, while their father lived, it was uncertain whether he would leave any children, and therefore it was uncertain to whom the land would pass. One of the surviving children further claimed that, as the third child died during her father’s lifetime, the grandchild took no interest in the reversionary estate, but that it passed to the surviving children; while the grandchild claimed that she inherited the one-third which her mother would have inherited, to take effect upon the termination of the life-estates. And, in affirming a decree in favor of the complainant, it is held: a — That the manifest intent of the testator was that the land should go to the issue of the son, if he should have any, and that there is nothing in the provisions of the will from which it can be inferred that he intended to divert the estate, in any event, from the direct heirs of the son’s children.</p> <p>b — That upon the birth of the first child he became, under How. Stat. § 5529 (which provides that future estates in land are vested when there is a person in being who would have an immediate right to possession upon the ceasing of the intermediate or precedent estate, and are contingent while the person to whom, or the event upon which, they are limited to-take effect remains uncertain), the person in being entitled to the immediate right of possession upon the ceasing of the life-estates, and possessed of a vested estate in remainder, subject to be reopened to let in after-born children.</p> <p>e — That each of the three children possessed an alienable estate, under How. Stat. § 5551, which provides that expectant estates are descendible, devisable, and alienable in the same-manner as estates in possession; and that the grantee of either* in the absence of limitations to the contrary, would succeed to-the entire estate of the grantor, and would take it subject to-be reopened in the same manner as though the title had remained in the grantor.</p> <p>d — That, the life-estates having by purchase become merged in the vested remainder, no outstanding interest remained, and no portion of the title could be thereafter divested except by the birth of another child, which would only take away so much of the title of each of the three children 'as would give the newly-born heir an equal interest with them.</p> <p>e — That, if the Court were not correct in the foregoing conclusions, the complainant must prevail, for the reason that How. Stat. § 5551, as held in L’Etourneau v. Henquenet, 89 Mich. 428, applies to contingent estates, which when alienated are subject to the contingency by which they may be defeated, and, if held by minors, they may be sold by their guardians under the direction of the court of chancery; and, the proceedings -instituted to convey the interests of the three children being regular, the guardian’s deed issued in pursuance thereof conveyed their entire interest to the grantee.</p>

(Canfield, J.) Appeal from the disallowance of a claim against the estate of decedent. The estate brings error. Affirmed. The facts are stated in the opinion, and in 87 Midi. 248.

<p>Error to Berrien. (O’Hara, J.)'</p> <p>Assitmpsit. Defendant brings error. Reversed. The facts are stated in the opinion.</p>

<p>Municipal corporations — Public improvements — Assessments.</p> <p>1. The right to assess land for a local improvement does not depend upon the use to which the owner may choose to put such land, or whether he may see fit to put it to any use.</p> <p>2. The measure of the benefit, if any, acquired by a parcel of lan'd by a public improvement is, under the charter of the city of Grand Rapids, for the common council, and board of review and equalization, who are by the charter constituted commissioners to make the assessment, to determine.</p> <p>3. Municipal officers who are charged with the duty of determining the district benefited by a public improvement, and making the assessment thereon, will be presumed to have acted in good faith, and to have exercised correctly the discretion reposed in them; and, where mistake or abuse of discretion is not manifest or demonstrable, their determination is not reviewable by the courts.</p> <p>4. Complainant is the owner of the river front on each side of the western terminus of Bridge-street bridge (which spans Grand river in the city of Grand Rapids, and connects east and west Bridge streets), and has constructed, and maintained for some time, between the dock line and the original river bank, a canal, which is used to furnish power to factories in the vicinity. Over the east bank of the canal, on the south side of and facing the bridge, complainant has erected a brick building, and upon his application the common council caused the removal of the south rail of the bridge, thus giving access to the building from the southerly footway of the bridge, and which building is also accessible from West Bridge street via an intersecting street, and a private bridge erected by the complainant over the canal in the rear of said building. The land in question was assessed on account of the expense of paving West Bridge street, and complainant objects to the assessment on the ground that the land is in the bed of the river, and does not abut upon and is not accessible from said street; which objection is held untenable.</p>

<p>Error to Berrien. (O’Hara, J.)</p> <p>Debt. Defendants William T. Robb, Brant, and Thomas bring error. Affirmed. The facts are stated in the opinion.</p>

<p>Mortgage — Debts secured — Merger—Execution sale — Redemption by creditor — Interest acquired — Notice—Ids pendens.</p> <p>1. A mortgage securing the payment of $4,000 within 90 days from date, and all -obligations the mortgagee may assume or become liable for by reason of any paper indorsements or obligations he may make for or at the request of the mortgagor, and which provides that, upon payment of such sum or sums for which the mortgagee shall become liable within the 90 days, he shall discharge the mortgage, secures only such claims, aside from the $4,000, as are based upon indorsements or obligations made within the 90 days.</p> <p>S. Such a mortgage will not secure the mortgagee for the payment of the pre-existing note of the mortgagor, upon which the mortgagee is not an indorser, nor will such payment be covered by a mortgage securing the mortgagee for all indorsements theretofore made, or Which he shall thereafter make, for the benefit of the mortgagor.</p> <p>S. An accommodation indorser, who was secured by mortgage, was called upon by a bank at which the note had been discounted for its payment. He paid the amount due, and received from the bank an assignment of whatever rights it had acquired as purchaser of the mortgaged premises at a sale made under an execution issued on a judgment rendered against the maker in a suit on the note, and then filed a bill to foreclose his mortgage. And it is held that the assignment did not affect the mortgage, there being nothing to indicate such an intention, and that the law-does not require the application of the doctrine of merger.</p> <p>4. A bill was filed to foreclose two mortgages, one given to secure all obligations which the mortgagee might become liable for as indorser within a stipulated time, at the mortgagors request, and the other, all indorsements theretofore or subsequently made for his benefit. The mortgagee paid certain notes under the erroneous supposition that they were covered by the mortgages, and, in his bill, claimed the amounts so paid as due thereon, but did not set forth in support of such claim an agreement of the parties, made after a settlement between them, which provided that said claims should be treated as a portion of the mortgage debt, but which omission was supplied by amending the bill on the hearing to cover the proofs made in that regard. And it is held that the lis pendens filed with the original bill was sufficient notice to a subsequent incumbrancer, who became such without actual notice of said agreement, of the rights of the complainant thereunder.</p> <p>5. A mortgagee, having acquired the interest of an execution purchaser in the mortgaged premises, entered into an agreement with the execution debtor, before the expiration of the redemption year, by which certain additional claims were to be included in the mortgage security. After the filing of a foreclosure'bill and a notice of Ms pendens, a second judgment creditor sought to redeem, and received a sheriff’s deed, under the provisions of How, Stat. §§ 6126, 6140. And' it is held ' that such agreement was valid as against said judgment creditor.</p>

<p>Master and servant — Injury to employe — Vice principal — Damages —Contributory negligence.</p> <p>1. The question of the contributory negligence of the plaintiff, under the facts of this case as stated in the opinion, is held to have ' been properly submitted to the jury.</p> <p>3. Defendant’s superintendent, to whom it had delegated general authority to manage the business, including the duty to see that the machinery in its factory was kept in good 'order, is held to have been plaintiff's superior servant while starting a planer which plaintiff was oiling, and thereby causing the injury complained of.</p> <p>3. The fact that the plaintiff in a negligence case was afflicted at ' the time of the accident with a scrofulous difficulty, which rendered it possible, or even likely, that a slight injury would produce more serious results than if inflicted upon a perfectly healthy person, does not place him beyond the pale of the law, or prevent a recovery of such actual damages as he has sustained.</p>

<p>Partnership — Bight of action — Sale—Statute of frauds — Acceptance.</p> <p>1. A suit lies in the firm name to recover the price of goods belonging to the partnership, and sold by one of the partners without disclosing the joint ownership, subject to the like defenses as if the partner had sued therefor in his own name. »</p> <p>2. Where a quantity of onions are sold by sample, and stored in one lot, to be shipped on the order of the vendees, the delivery and acceptance of one car-load saves the sale from the operation of the statute of frauds, and passes the title to the entire lot to the vendees.</p>

<p>Bills and notes — Payment—Good-faith holder — Burden of proof— Notice of protest — Evidence.</p> <p>1. An objection that a notice of protest, which was received in evidence without objection, is not under seal, cannot be raised for the first time in the Supreme Court.</p> <p>2. Where, in a suit by an indorsee upon a promissory note, the plaintiff produces the note with proof of protest, a defense that it was paid while in the hands of a prior indorsee is inadmissible, unless accompanied by evidence that the plaintiff is not a bona fide holder of the paper, and upon this issue the defendant has the burden of proof.</p> <p>3. The Court distinguish this case from Patón v. Coit, 5 Mich. 505; Carrier v. Cameron, 31 Id. 373; Conley v. Winsor, 41 Id. 256, — where the defendant had shown illegality in the original consideration of. the note, or fraud in procuring it from the maker, and it was held, in line with all the authorities, that this shifted the burden of proof upon the plaintiff to show the good faith of his. purchase before maturity.1</p>

<p>Error to St. Joseph. (Loveridge, J.)</p> <p>Replevin. Defendant brings error. Affirmed. The facts are stated in the opinion.</p>

<p>Taxes — Water pipes — Payment under protest — Findings of fact— Corporations — Estoppel.</p> <p>1. The pipes of a water company, laid in its own land from its pumping works to a lake from which its water supply is drawn, and to the city supplied, are a part of the realty, and assessable accordingly, under 3 How. Stat. § 1170al, which provides that, for the purpose of taxation, real property shall include all lands within the State, and all buildings and fixtures thereon and appurtenances thereto, except in cases otherwise expressly provided by law.1</p> <p>2. Where land owned by a water company, on which its pumping works are located, and in which its pipes are laid, lies in one township, and its principal business office is located in a city outside of said township, and the land is assessed by the supervisor without regard to the water pipes which, if regarded as personal property, are assessable in said city, and the board of review add to the roll a personal-property assessment on account of the pipes, and the evidence in a suit brought ijo recover said personal tax, paid under protest, fails to show that the company had actual notice of the personal-property, assessment, the company will not be presumed to have had knowledge thereof, and it cannot be said that no injustice will be done the company by compelling it to pay the personal-property tax upon the theory that the rate of taxation in the township is the same on real and personal property.</p> <p>3. In the absence of a request for more specific findings of fact, and an exception to the refusal thereof, an objection that the findings are not sufficiently specific will not prevail if the facts found are consistent with the judgment, and sufficient to support it.</p> <p>4. Where taxes are assessed against a corporation, and it pays them under protest, and sues to recover the money, the defendant cannot be heard to say in said suit that the plaintiff is not legally incorporated.</p>

(Haire, J., presiding.) Bill to set aside certain school taxes, and to enjoin the sale of lands therefor. Complainant appeals. Decree affirmed. The facts are stated in the opinion.

Mandamus. Relator applied for mandamus to compel respondent to expunge from its records an order suspending him from his office and work as pastor, and to re-instate him therein. The facts are stated in the opinion.

<p>Error to Bay. (Cobb, J.)</p> <p>Assumpsit. Plaintiffs bring error. Be versed. The facts are stated in the opinion.</p>

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

(Aldrich, J.) Bill to compel the specific performance of a land contract. Defendant appeals. Decree affirmed. The facts are stated in the opinion.

<p>Error to Oakland. (Moore, J.)</p> <p>Assicmpsit. Defendant brings error. Affirmed. The facts are stated in the opinion.</p>

<p>Contract — Sale—Account stated.</p> <p>1. A contractor agreed to deliver charcoal at 8 cents per bushel, in boxes to be furnished by the purchaser, and holding 125 bushels each. The purchaser knew the quality of the timber from which the charcoal was to be manufactured, and that there was a substantial difference in weight, dependent upon the kind of wood used in such manufacture. After the contractor had been operating for three years under the contract, the purchaser, without his consent, commenced determining the amount of charcoal delivered by weight. During the three years the inspector had made deductions for short measure, braize, and poorly-burned brands, and after said change he made proper deductions for brands and braize. And it is held that the method of determining the quantity of coal delivered was material, and could not be changed without the consent of the contractor.</p> <p>2. An offer to pay 8 cents per bushel for all the charcoal a contractor can furnish during an indefinite period is a continuing offer, accepted as acted upon, and is binding upon the offerer until withdrawn; citing Cooper v. Wheel Co., 94 Mich. 272.</p> <p>3. Where a contractor agrees to deliver charcoal.at 8 cents per bushel, and receives credit at that price for a time in the statements of account rendered him, after which the price is reduced in such statements, and he protests against the reduction, and is assured that the matter will be adjusted upon the basis of the original contract, he is not estopped from recovering the full contract priee.</p> <p>4. Where, in order to arrive at the true situation of the account between the parties, it is necessary to inquire outside of certain writings, which the defendant claims amount to an account stated, and on doing so it is found that at the time the writings were made a controversy existed, which neither party regarded as settled by the writings, they cannot be held, as a matter of law, to conclude the plaintiff.</p>

<p>Contract — Settlement—Evidence.</p> <p>Where, in a suit by a tenant to recover .a certain sum which he claims the landlord agreed to pay him, on surrendering his lease, for his interest in the growing crops and other property, it appears from plaintiff’s own testimony that, pending the negotiations for such surrender, the defendant repudiated the claim sued for, and refused to pay it, and asserted that he did not owe plaintiff anything, and that the plaintiff concluded the negotiations and surrendered his lease in the face of these positive declarations, a verdict should be directed in favor of the defendant.</p>

(Hosmer, J.) Bill to review and set aside a decree in a foreclosure case. Complainants appeal. Decree affirmed. The facts are stated in the opinion.

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

<p>Error to Jackson. (Peck, J )</p> <p>Case for libel. Plaintiff brings error. Affirmed. The facts are stated in the opinion.</p>

<p>Bill of sale — Security—Filing—Failure to reneiv — Rights of execution creditor.</p> <p>A husband gave his wife a bill of sale as security for an indebtedness due her from him, and retained the possession of the property. The bill of sale was filed in the proper office, and, while unrenewed,the property was seized under an execution against the husband, and replevied by. the wife. There was no evidence tending to show that the property was afterwards turned over to the wife as her property. And it is held that the defendant was entitled to an instruction that the plaintiff could not recover.1</p>

(Dickerman, J.) Petitioner applied to the circuit judge for a mandamus to compel -the respondent to sign certain orders, and brings certiorari to review the order of the circuit judge denying the writ. Reversed. The facts are stated in the opinion.

(Grove, J.) Quo warranto to test the title of respondent to the office of justice of the peace. Respondent brings error. Affirmed. The facts are stated in the opinion.

' Appeal from Gogebic. (Haire, J.) Bill to restrain tile defendants from assigning a certain judgment, or from enforcing its payment. Complainants appeal. Decree reversed. The facts are stated in the opinion.

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

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

<p>Fraudulent conveyances — Chattel mortgage — Evidence.</p> <p>1, A chattel mortgage given to secure an existing indebtedness, and the payment of the price of a bill of goods which the mortgagor has ordered, is valid.</p> <p>'2. Where in a suit involving the bona fides of a chattel mortgage given by a druggist to a firm of liquor dealers, with whom he had dealt for several years, to secure an existing indebtedness and the price of a bill of liquors which the mortgagees claim had been ordered by the mortgagor, the mortgagor denies ever ordering the liquors, and testifies that the mortgage was given for the larger amount in fraud of other creditors, it is competent for the assailants of the mortgage to show, as bearing upon the probabilities, in what quantities the mortgagor had usually ordered liquors of the mortgagees, and that the alleged order was an unusual one, and out of all proportion to the business then being carried on by the mortgagor.</p> <p>8. Where, in such a case, the mortgagees introduce evidence to show that at the request of the mortgagor, made subsequently to the execution of the mortgage, they did not ship the goods ordered, but credited the price of the same upon the mortgage, and the mortgagor claims that the writing containing such request was made by him at the instance of the mortgagees, and that the goods mentioned had never been ordered, it is error for the court to refuse to instruct the jury, at the request of the attaching creditors of the mortgagor, that any arrangement between the parties, by which the amount of the mortgage was reduced to the sum actually due, would not save the security, if the mortgage was fraudulent in its inception.</p>

Rehearing, upon application of plaintiff, of case reported in 96 Mich. 422. The facts are stated in the former report of the case.

<p>Carriers — Ejection of passenger — Instructions to jury.</p> <p>Plaintiff claimed to have been wrongfully ejected from defendant’s train by the conductor while in possession of a ticket entitling him to passage, t The testimony tended to show that the plaintiff had been for Ijome years subject to deep sleeps or chronic drowsiness, from which it was difficult to arouse him; that he bought a ticket from Mason to Jackson and return; that on liis return trip, in the night-time, he fell asleep soon after leaving Jackson; that, when he became conscious, he found he was being ejected from the car by the conductor; that, before reaching the door of the car, he informed the conductor that he had a ticket to Mason, but was not given an opportunity to4fc’esent it.. And it is held that the questions involved were fairly submitted to the jury in the charge, and the judgment is affirmed.</p>

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

(Grove, J.) Bill to declare a note and a mortgage paid, and enjoin the prosecution of a suit for their collection. Defendants Northern National Bank and Stearns appeal. Decree modified and affirmed. The facts are stated in the opinion.

<p>Error tó Macomb. (Canfield, J.)</p> <p>Assumpsit. Defendant brings error. Affirmed. The facts are stated in the opinions.</p>

<p>Error to Calhoun. (Hooker, J.)</p> <p>Ejectment. Defendants bring error. Reversed. The facts are stated in the opinion.</p>

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

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

<p>Error to Berrien. (O’Hara, J.)</p> <p>Assumpsit. Defendant Orall brings error. Reversed. The facts are stated in the opinions.</p>

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

<p>Error to Muskegon. (Dickerman, J.)</p> <p>Assumpsit. Defendant brings error. Affirmed. The facts are stated in the opinions, and in 94 Mich.- 389.</p>

(Dickerman, J.) Bill to foreclose a mechanic’s lien. Order overruling demurrer reversed, and recorded remanded, with leave to complainant to apply for leave to amend the bill. The facts are stated in the opinion.

(Dickerman, J.) Bill to foreclose a mechanic’s lien. Defendants Muskegon Machine & Foundry Co., Muskegon Improvement Co., and Illinois Trust & Savings Bank appeal from order overruling demurrer. Order reversed, demurrer allowed, and record remanded, with leave to the complainant to apply for permission to amend the bill. The facts are stated in the opinion.

<p>Fire insurance — Conditions of policy — Waiver—Burden of proofs-Evidence.</p> <p>1. The plaintiff in a suit upon an insurance policy has the burden of showing knowledge on the part of the company, at the time of the issuance of the policy, of the existence of a mortgage upon the insured property, the policy providing that it shall be void if the property be so incumbered.</p> <p>2. When the date of a transaction is positively fixed by the evidence of one who was a party to it, the jury cannot be permitted to guess or surmise or conjecture that the transaction took place at another time from the testimony of one who was present, but who cannot tell when it occurred.</p> <p>3. Where no written application for insurance is made, or any terms of the policy agreed upon by parol except the amount of the insurance, the insured is chargeable with knowledge that the policy he receives contains the contract binding upon him as well as the insurer, and that it contains the usual terms of such instruments.</p> <p>4. An insurer is not required to inquire into the condition of the title to the insured property, or to inform the insured of all the conditions and terms of the policy to be issued, or to read it to him, or inform him of its contents; and, when the policy is accepted without objection, the insured is bound by .its terms, unless the same are waived by the insurer.</p> <p>5. The province of this Court is to pass upon questions raised and determined in the court below; and it would be manifestly unfair to discuss and determine questions raised for the first time in the briefs of counsel, and to which neither the evidence nor the attention of the trial court was directed.</p>

(Stone, J.) Bill to set aside a deed. Defendant appeals. Decree reversed, and bill dismissed. The facts are stated in the opinion.

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

Mandamus. Relators applied for mandamus to compel respondent to set aside an order striking from the files certain papers. The facts are stated in the opinion.

<p> Habeas corpus. </p> <p>The facts are stated in the •opinion.</p>

<p>Garnishment — Exemption of wages — Payment into court — Liability of garnishee.</p> <p>Where wages are garnished, and the employer, at the close of his examination as garnishee, which discloses an indebtedness to the principal defendant for personal labor, but is silent as to whether he is a householder, pays the amount admitted to 'toe due to the justice, under How. Stat. § 8037, which permits such payment except as to the $25 exemption allowed the principal defendant by How. Stat. § 8032, where he is a householder having a family, such payment is made at the peril of the garnishee defendant, and the principal defendant, unless estopped from asserting such a claim, may recover from the garnishee defendant the indebtedness due him at the time of the service of the writ of garnishment, not exceeding the amount of the exemption.* 1</p>

(Daboll, J.) Bill to quiet title to real estate. Complainant appeals from order sustaining demurrer. Keversed. The facts are stated in the opinion.