Volume 99 — Michigan Reports

<p>Error to Alpena. (Simpson, J., presiding.)</p> <p>Negligence case. Defendant brings error.</p> <p>The facts are stated in the opinions, and in 91 Mich. 538.</p>

(Ramsdell, J.) Bill for an accounting. Defendants Barnes and Hatch appeal from an order overruling a demurrer. The facts are stated in the opinion.

<p>Statute of limitations — Payment—Evidence.</p> <p>In a suit upon an open account, against which the statute of limitations had run unless a payment had been made as testified by the plaintiff, a letter written by the defendant to the plaintiff about two years after the time the payment is claimed to have been made, asking for a statement of defendant’s account, and stating that plaintiff knew that defendant had paid some on it, is admissible as bearing upon the question of such payment.</p>

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

<p>Sale — Warranty—Breach—Recoupment—Practice in Supreme Court —Exceptions—Index to record.</p> <p>1. Where error is assigned unon the exclusion of evidence, attention should be called to the exception taken to the ruling complained of by citing the page of the record where it may be found, unless exceptions are indexed under Rule No. 61.</p> <p>2. Plaintiff sold an engine and boiler to the defendant, which proved unsatisfactory, and a new arrangement was made by which the boiler was returned, and the purchase price was reduced, and secured by the notes of the defendant. He paid a portion of the notes, and in a suit upon the remaining note sought to recoup damages for the breach of an alleged warranty, made when the notes were given, that the engine should do defendant’s work as effectively and economically as any other engine. The defendant testified that he told the plaintiff that he did not like the engine; that it used too much steam; that it was. not as economical as represented; that he did not like the-boiler; that it was not large enough, and would not furnish steam for the engine; and that plaintiff’s agent said that, if' defendant would get a certain sized boiler, he would guarantee that the engine would do the required wcrk, and as economically as any other engine; and that defendant was willing to. buy another boiler, and continue the use of the engine, and did so. And in answer to the contention of the plaintiff that the language claimed to have been used was but the expression of an opinion, and that the force of the alleged warranty was lost for the reason that the defendant knew that the-engine would not work as economically as other engines, and could not have relied upon the undertaking that it should, it is held that whether the defendant procured the new boiler and continued the use of the engine in reliance upon the alleged warranty, as he claimed, or with the design of keeping the engine, and using the warranty, upon which he did not rely, as a subterfuge to avoid payment, were pertinent questions for the jury, to be determined in the light afforded by the defendant’s subsequent conduct, and that the question of recoupment was properly left to the jury.</p> <p>3. It appeared that certain representations regarding .the engine were made at the time.it was contracted for which were not covered by the alleged warranty. And it- is held that the new arrangement supplanted the old one, and that the jury should have been confined, in awarding damages, to the breach of said warranty, if one was shown to have been given.</p>

<p>Sale — Warranty of title — Evidence—Charge to-jury.</p> <p>1. Where the defense in a suit upon a check, given in part payment for a quantity of cedar posts, is that payment of the check was stopped by the vendee because of the failure of the vendor to furnish a bill of lading of the posts, which the defendant claims he agreed to do, but which the plaintiff denies, it is competent for the plaintiff to show, as rebutting such defense, that the check was dishonored because the defendant had no funds in the bank to meet it.</p> <p>2. A receipt, given by the plaintiff for the cash payment made on the posts, concluded, “as per B. L., to be furnished by me.” And it is held that it was competent for the plaintiff to show that this conclusion was added by the defendant after the receipt was signed, and that no agreement was made to furnish a bill of lading.</p> <p>3. Where, in a suit to recover the unpaid portion of the purchase price of a quantity of cedar posts on a wrecked schooner on one of the Great Lakes at the time of their purchase, the defendant claims an entire failure of consideration by reason of the seizure'and sale of the posts to satisfy a maritime lien which had attached thereto, and the testimony is conflicting as to whether the vendor left the vendee.to infer that the posts were free from all liens, or whether he stated to him the location of the posts, and refused to guarantee against liens, a charge to the jury that there is an implied warranty of title on the sale of personal property, and that, if they find that nothing was said about the title to the posts, the defendant is entitled to a verdict, and if they find that the vendor refused to warrant against liens, and that there was no suppression of the truth, the defense is not made out, is not open to objection..</p>

<p>Exemptions — Waiver—Evidence.</p> <p>A written consent by a debtor to the public or private sale in bulk of his entire stock of goods on several executions under which it is held, and the application of the proceeds, less the costs of the sale, in liquidation pro rata of the debts of the several plaintiffs, is evidence of a waiver by the debtor of .his statutory exemption, unless contradicted or qualified by legitimate evidence tending to break its force.</p>

<p>Assignment for benefit of creditors — Pleading—Assumpsit</p> <p>An assignee for the benefit of creditors, who sues to recover for goods sold and delivered by the assignor, should aver in his declaration the indebtedness of the defendant to the assignor for the goods, and the assignment of the claim by the assignor to the plaintiff.</p>

Mandamus. Relator applied for mandamus to compel respondent to allow tbe township of Thomastown a certain credit, and to provide for its payment The facts are stated in the opinion, and in 87 Mich. 237.

<p>Appeal from Eaton. (Hooter, J.)</p> <p>Bill to foreclose a mortgage. Defendant Henry H. Slayton appeals.</p> <p>The facts are stated in the opinion.</p>

(Canfield, J.) Bill to enjoin the sale of real estate on execution. Defendant Emerson appeals. The facts are stated in the opinion.

<p>Master and servant — Defective machinery — Pleading—Contributory negligence,</p> <p>1. A declaration in a negligence case which alleges neither the exercise of due care on the part of the plaintiff nor negligence 1 on the part of the defendant is fatally defective.</p> <p>2. Where it is dangerous to remove the refuse accumulating around a lath machine while the saw is in motion, and the operator can stop the saw, due care requires that he should do so, and he is guilty of negligence if he fails to exercise such care.</p>

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

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

<p>Appeal from Wayne. (Hosmer, J.)</p> <p>Bill to foreclose three mortgages. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

(Buck, J.) Appeal from the allowance of the final account of executors. B. Henry Hopkins, one of the heirs, brings error. The facts are stated in the opinion.

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

(Brevoort, 'J.) James B. Cook, the father of the minor, appealed from an order of the Wayne probate court authorizing her guardian to lease her real estate. The guardian brings' error from the judgment of the circuit court, reversing the order appealed from. The facts are stated in the opinion.

(Dickerman, J.) Bill to compel the specific performance of a land contract, and for an accounting. Complainant appeals. The facts are stated in the opinion.

(Smith, J.) Bill to reform a deed and to remove cloud from title. Defendant Gooding appeals. The facts are stated in the opinion.

(Kinne, J.) Appeal from the allowance of a claim against the decedent's estate. Claimant brings error. The facts are stated in the opinion.

<p>Garnishment — Foreign corporation — Summons—Affidavit.</p> <p>1. The failure to describe the defendant as a foreign corporation in a summons issued under How. Stat. § 8087, which authorizes the commencement of suit against a foreign corporation where garnishment proceedings have been instituted in aid of the principal suit, will not deprive the court of jurisdiction.1</p> <p>2. An affidavit for a writ of garnishment made by one of the plaintiffs in the original suit, in which the affiant avers that the plaintiffs are justly apprehensive of the loss of the debt unless the writ issue, is sufficient, his personal knowledge of that fact being presumed.</p>

(Chambers, J.) Respondent was convicted of being a disorderly person, under Act No. 264, Laws of 1889, and sentenced to imprisonment in the Detroit House of Correction for two years. The facts are stated in the opinion.

(Buck, J.) ^Respondent was convicted of being a disorderly person, under Act No. 264, Laws of 1889, and required to enter into a recognizance for his good behavior, and pay one-half the costs of prosecution. The-facts are stated in the opinion.

Error and certiorari to Kalamazoo. (Back, J.) Respondent was convicted, on bis plea of guilty, of keeping his saloon open on Sunday, and sentenced to pay a fine of $100 and costs. The facts are stated in the opinion.

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

Mandamus. Relator applied for mandamus to compel respondent to-draw his warrant on the State treasury for $100. The facts are stated in the opinion.

(Stone, J.) Appeal from the allowance of a claim in probate court. Defendant brings error. The facts are stated in the opinion.

<p>Equity jurisdiction — Rescission of contract — Municipal corporations — Construction of waterworks — Refusal to accept.</p> <p>1. The equity court has jurisdiction, to decree the rescission of a contract for non-performance.</p> <p>2. Complainant filed a bill for the rescission of a contract for the construction of waterworks and the furnishing of water for fire and domestic purposes, on the ground of the failure of the contractor to furnish the quality of water and the pressure power contracted for. And it is held that the bill states a case for equitable cognizance, and that the proofs abundantly show that the city council was justified in its refusal to accept the works at the time they were tested, and that at no time since has the defendant been in a position to comply with its agreement, so that it could insist upon such acceptance.</p>

(Kelley, J.) Respondent brings certiorari to review mandamus proceedings instituted by relator to compel respondent to audit relator’s bill for the cure of one Richard Kelley of the liquor habit,'under Act No. 207, Laws of 1893, popularly known as the “Jag Cure Act.” The facts are stated in the opinion.

<p>Pledge — Assignment—Executors and administrator's.</p> <p>1. An administrator may lawfully sell at private sale, and assign to the purchaser, his interest in a mortgage and the accompanying notes held by the decedent as pledgee at the time of his death, without first demanding payment of the pledgor, whose rights are not affected by such transfer.</p> <p>2. A pledgee of personal property or securities cannot, to the injury of hi§ pledgor, transfer the pledged property, or divest the pledgor of title thereto, until he has demanded payment of the debt, and given the pledgor an opportunity to redeem, and then only at public sale and on notice.</p>

<p>Case made from Wayne. (Gartner, J.)</p> <p>Assumpsit. Both, parties' assign error.</p> <p>The facts are stated in the opinion.</p>

Mandamus. Eelator applied for mandamus to compel respondent to vacate an order setting aside an order disallowing a claim filed against an estate, and granting a rehearing, etc. The facts are stated in the opinion.

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

(Hooker, J.) Appeal by the guardian of an incompetent person from, the order of the probate court on final accounting. The facts are stated in the opinion.

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

<p>Guardian and ward — Incompetent person — Discharge—Notice.</p> <p>1. Notice of the application of an incompetent person, under How. Stat. § 6329, for his discharge from guardianship on. the ground that he has regained competency, must be given to the next of kin or presumptive heirs of the applicant.</p> <p>2. Mandamus will not lie to compel a circuit judge to vacate an order dismissing the appeal of an incompetent person from the order of the probate court denying his application for a discharge from guardianship, where it appears that the citation was directed to the guardian, mother, two sisters, and wife of the incompetent, all of whom, except the wife, resided in this State, and the files in the probate court fail to show service, either actual or constructive, upon the wife and one of the sisters.</p>

(Newton, J.) Respondent was convicted of assault with intent to do great bodily harm, less than the crime of murder, and sentenced to the State House of Correction and Reformatory at Ionia for three years. The facts are stated in the opinion.

Exceptions before judgment from Menominee. (Stone, J.) Eespondent was convicted of engaging in the business of selling intoxicating liquors at wholesale without having paid the tax and filed the bond required by law. 'The facts are stated in the opinion.

Exceptions before judgment from the recorder’s court of Detroit. (Gartner, J., presiding.) Eespondent was convicted of having kept open his- barber ■■shop on Sunday, in violation of Act No. 148, Laws of 1893. The facts are stated in the opinion.

<p>Appeal from Ingham. (Person, J.)</p> <p>Bill to remove cloud from title. Defendants appeal.</p> <p>The facts are stated in the opinion.</p>

<p>Foreign courts — Jurisdiction—Appearance.</p> <p>1. A general appearance by a resident of Michigan in a suit brought against him in a Canadian court having general jurisdiction of the. subject-matter confers jurisdiction over his person, which he cannot question in a suit in this State upon the judgment rendered by the Canadian court.</p> <p>2. A recitation in said judgment of an order by the master in chambers that the statement of defense to the action filed by the defendant should be stricken out, and that the plaintiff should be at liberty to proceed in the action as in case of default of a statement of defense, will not deprive the court of jurisdiction, it not appearing but that the action taken was consistent with the rules of practice obtaining in that court, and based wholly upon the insufficiency of the pleading itself.</p>

(Brevoort, J.) Appeal from the disallowance of claims in probate court. Claimant brings error. The facts are stated in the opinion.

<p>Adoption — Contract—Specific performance — Equity jurisdiction.</p> <p>The defendant, when about two years old, was bound out by the superintendents of the poor of the proper county to one Phineas E. Wright, and, after living in his family for about seven years, was adopted under the adoption law of 1861 by Mr. and Mrs. Wright, with whom he continued to live on their farm until the death of Mr. Wright, which occurred when defendant was 22 years and 3 months old. During all of this time defendant faithfully performed his duty to his foster parents, and gave them his entire time, without compensation, in the full belief, which they encouraged him in entertaining, that he was in fact their son, and as such would ultimately come into the possession of all of their property. After the death of Mr. Wright, and after the adoption law of 1861 had been declared unconstitutional, proceedings were taken under the statute to determine who were his heirs at law, and upon the hearing in the probate court the defendant was so adjudged, which judgment ■ was reversed on appeal to the circuit court, and a like adjudication there made in favor of the complainants, who thereupon filed a bill to restrain the defendant from the commission of waste upon said farm, to which they claimed title as the legal heirs of said Phineas E. Wright under the statute regulating the descent of real property.</p> <p>Long, J., filed an opinion, concurred in by McGrath, O. J., holding:</p> <p>a — That there was at least an implied contract that *the defendant was to have the property; that there had been such a performance on his part as to take the case out Of the operation of the statute of frauds; and that the title to the estate of Phineas E. Wright vested, by reason of this contract, at his decease, in the defendant, the same as if he had been the son of the deceased.</p> <p>b — That the probate court had no jurisdiction to hear and determine in the heirship proceedings the question involved in this case, and that the circuit court was alike powerless on appeal to adjudicate upon that question.</p> <p>Grant, J., concurred with Long, J., on the ground that the parties acted in the undoubted belief that the defendant, upon the death of Mr. Wright, would take the property, and that no reason is seen why equity cannot give validity to such intention.</p> <p>Hooker, J., filed a dissenting opinion, concurred in by Montgomery, J., holding:</p> <p>a — That the question whether or not Phineas R. Wright could, in the absence of statutory authority, make the defendant his heir, and procure recognition for him as such, is concluded for this case by the adjudication of the circuit court in the heir-ship proceeding.</p> <p>b — That no case is found which holds that proceedings like those shown in this case can be construed into a contract to convey property by will or otherwise, where the evidence conclusively shows that the undertaking was merely to adopt and make an heir of a child, subject to the right on the part of the foster parent to cut him off as he might his own child, especially where the child was not only ignorant of the transaction, but was already under legal obligation to perform all of the services which constitute the consideration for such agreement.</p>

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

(Adsit, J.) Assumpsit. Defendants bring error. and judgment entered in this Court in favor of plaintiff for $7 and interest from _ September 17, 1890, with costs in favor of defendants. The facts are stated in the opinion.

<p>Deed, — Vested remainder — Testamentary disposition.</p> <p>A father executed and delivered to his son a warranty deed of his homestead, subject to the following conditions, limitations» and uses:</p> <p>a — That the father was to remain in full possession and control of the land during his natural life, and enjoy the rents and profits arising therefrom.</p> <p>b — That the son was to pay his father an annuity of $100 during the remainder of his natural life, and that at his death the title to the land should hex in the son, subject to the further limitation that after the father’s death his housekeeper, if she should continue as such until that event, was to have a like possession, use, and enjoyment of the land, and receive a like annuity during the remainder of her natural life.</p> <p>c — That in case of the refusal or neglect of the son to pay said annuities, or to perform any ether of the aforesaid conditions, the deed should be null and void, otherwise remain in full force and effect.</p> <p>And it is held that it was not intended to defer the time when the title should vest, but that the son took a vested remainder subject to the condition mentioned.</p>

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

<p>Logging contract — Construction—Purchase scale.</p> <p>The term “ purchase scale,” as used in a contract made by the assignee of an insolvent firm to manufacture certain pine and ash logs which had been purchased for the firm by one of its members, and afterwards sold to him by the firm, which had agreed to' saw them for him at a fixed price per thousand, the pine logs at “purchase scale” and the ash logs at “full scale,” and which terms were used in like manner in the contract made by the assignee, is construed as meaning, as to the pine logs, the scale made when they were purchased for the firm.</p>

(O’Hara, J.) Bill to enforce the specific performance of a land contract. Defendant appeals. The facts are stated in the opinion.

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

Mandamus. Relator applied for mandamus to compel respondent to vacate an order setting aside a default. The facts are stated in the opinion.

(Hosmer, J.) Relator applied to tbe circuit judge for mandamus to compel the respondent to issue to him a tax certificate under section 135, Act No. 206, Laws of 1893, without compensation therefor. Respondent brings certiorari to review the order granting the writ. The facts are stated in the opinion.

(Buck, J.) Relator applied to the circuit judge for mandamus to compel respondent to accept relator’s bond and the tax for selling intoxicating .liquors, and to issue the statutory receipt and card, and brings certiorari to review the order denying his application. The facts are stated in the opinion.

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

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

<p>Justices’ courts* — Special appeal — Demurrer—Jurisdiction—Appearance — Waiver of defects.</p> <p>1. An objection that the justice erred in holding, against the objection of the defendant, that the plaintiff’s declaration was sufficient in law, cannot be raised by special .appeal.* 1</p> <p>2. In whatever form it be pub, any objection by a defendant in justice’s court that the plaintiff’s declaration is insufficient in law is sufficient to constitute a general demurrer.</p> <p>3. A general demurj'gr_í>y the defendant in justice’s court to the plaintiff’s declaration is a sufficient appearance to give the justice jurisdiction of the person of the defendant, which appearance is not defeated by the subsequent withdrawal of the demurrer.</p>

Mandamus. Eelator applied for mandamus to compel respondent to vacate an order allowing an appeal from justice’s court. The facts are stated in the opinion,

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

<p>Res judicata — Ejectment — Parties — Compensation for improvements — Partition.</p> <p>Where, in ejectment by one of the heirs of the remainder-man against-the purchaser of the estate of the life tenant and of her interest in the land as another of the heirs of the remainder-man, no objection is made by the defendant on account of the non-joinder of his wife as a co-defendant, and he is allowed compensation for improvements by him made after the termination of the life-estate, which he accepts and retains, and is denied compensation for improvements made prior to that event, such non-joinder does not void the proceedings in the ejectment suit, and the same are res judicata. as to a claim by the defendant for compensation for such prior improvements, made in a partition suit brought by the plaintiff, in which the wife of the defendant in ejectment is joined as a defendant.</p>

<p>Appeal from Berrien. (O'Hara, J.)</p> <p>Bill to quiet title. Complainant appeals.</p> <p>The facts are stated in the opinion.</p>

<p>Error to Grand Traverse. (Bamsdell, J.)</p> <p>Assumpsit. Plaintiff brings error.</p> <p>The facts are; stated in the opinion.</p>

<p>Criminal conversation — Evidence.</p> <p>1. Testimony which is admissible for one purpose cannot be excluded because it tends to prove a fact which is inadmissible; citing People v. Doyle, 21 Mich. 221; Cook v. Perry, 43 Id. 623.</p> <p>2. It is the duty of the court to caution the jury carefully as to the purpose for which such testimony is admitted, and, when this is done, the jury must be presumed to have acted in accordance with the instructions.</p> <p>3. The plaintiff in a crim. con. case may introduce in evidence letters written by his wife to the defendant, and received by him, under circumstances which refute any presumption of collusion between the wife and her husband, and which tend to show the alienation of her affections and the criminal intimacy charged.</p> <p>4. That portion of a conversation between the plaintiff and his wife tending to show his feelings and conduct on receiving evidence of her infidelity is admissible as bearing upon the question of damages; citing Hutchins v. Kimmell, 31 Mich. 126, 128.</p> <p>5. Statements of the wife, made to her husband in the absence of the defendant, are not admissible as evidence of the defendant’s guilt.</p>

<p>Recording laws — Notice—Correction of records — Ejectment—Pleading — Tax deeds — Possession.</p> <p>1. It is error to submit to tbe' jury, in a case involving the good faith of a purchaser of land, whether the fact that the record of a warranty deed forming a part of his chain of title shows that the covenants are limited to the acts of the grantor should have suggested an examination as to whether the grantor had previously deeded to another.</p> <p>3. ‘Where a plaintiff in ejectment establishes a prima facie right to recover at the date of the commencement of suit, a conveyance to the defendant from strangers to plaintiff’s title, made after the commencement of suit, is inadmissible under the plea of the general issue; citing Buell v. Irwin, 24 Mich. 145; Jenney v. Potts, 41 Id. 53; Hurd v. Raymond, 50 Id. 369.</p> <p>3. An attempted correction of the record of a deed, purporting to have been executed by Nathan Chadbourn, by a marginal entry, signed by the deputy register of deeds, that the word “Nahum” was recorded “Nathan” by mistake, and the change of the word “Nathan,” where it appeal’s in the body of the deed, to “ Nahum,” is not authorized by law.</p> <p>4. A defendant in ejectment, who fails to connect himself with the original title, and who, with knowledge that the plaintiff was in possession by a tenant, claiming to own the land, laid down the fence, and drove upon the land with a load of lumber, and, in answer to an inquiry by the tenant as to his authority so to do, replied that he had purchased the land of the idaintiff, intending thereby to prevent the tenant from informing the plaintiff of such entry, until the defendant could erect a shanty, and thus put himself in a position where he could claim actual possession, cannot question the title of the plaintiff under deeds issued by the Auditor General on the sale of the land for taxes.* 1</p>

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

(Adsit, J.) Relator applied for mandamus to compel the payment of interest on a judgment for costs in her favor on appeal from the probate of a will, and brings certiorari to review the order denying the writ. The facts are stated in the opinion.

<p>Bills and notes — Payment to agent of indorser.</p> <p>The indorsers of a note delivered to their attorney, to whom they were indebted for professional services, a chattel mortgage given to them as security for their indorsement, for the purpose of enabling him to enforce payment of the note. On receiving such payment the attorney gave to the maker a receipt in the names of the indorsers, by him as their attorney, in full for the note, in which he agreed to ' deliver the note to the maker when paid by him, and to z-elease the maker from all liability thereon, and thereupon he discharged the mortgage. The indoz-sers, who had made an assignment for the benefit of creditors the day before the receipt was given, joined with the receiver, afterwards appointed, in an assignment to the holders of the note of all claim to the money paid to the attorney. In a suit by the holders of the note against the attorney to recover said money, the latter testified that the indorsers authorized him to apply the money on his account against them, but did not show that the maker assented to such application. And it is held that the defendant had no right, under the circumstances, to make such an application of the money, and that the plaintiffs could recover the same.</p>

<p>Sale — Contract—Parol evidence — Implied warranty.</p> <p>1. Where a contract for the sale to a firm of butchers of a patent refrigerating process contains no warranty as to its preserving qualities, the vendees cannot, in a suit to recover the contract price, show by parol testimony that at the time the contract was made the vendor expressly warranted that the apparatus would preserve fresh meats for a stated time, and that it failed to fulfill the warranty.</p> <p>2. Parol evidence is not admissible to add to an unambiguous writing facts which may aid the implication of a warranty; citing Whitmore v. Iron Co., 2 Allen, 52, 58; Johnson v. Cranage, 45 Mich. 14.</p> <p>3. A refrigerator and cold storage company contracted with a firm of butchers to place its patent system of refrigeration in a refrigerator to be by them erected under the direction of the company. There was nothing in the contract beyond the name of the system to show that it was anything in the nature of a refrigerating process, or that it was designed to preserve meats, or that the purchasers had anything to do with meats. And it is held that no warranty can be implied that the system would preserve meats for any particular length of time.</p>

<p>Sale — Warranty—Option to return property — Aceeptanee.</p> <p>This casé falls within the principle applied in Childs v. O'Donnell, 84 Mich. 588, that an option given to a buyer to return goods if not satisfactory must be exercised within a reasonable time after the receipt of the goods, and their retention after 1 the expiration of such reasonable time must be regarded as An acceptance, unless the option is extended in clear and unmistakable language.</p>

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

<p>Error to superior court of Grand Rapids. (Burlingame,</p> <p>■J.)</p> <p>Negligence case. Defendant brings error.</p> <p>'The facts are stated in the opinion.</p>

<p>Will — Power—Construction.</p> <p>"Where a husband devises all of his real estate to his wife, to be used for her support and maintenance during her natural life, and directs that, if the rents and profits arising therefrom shall prove insufficient for such support and maintenance, she may, under the direction of the judge of probate of the proper •county, sell and convey so much of the land as shall be sufficient therefor, and that, if any of the real estate remains unsold at the death of the wife, it shall be divided equally among the testator’s heirs, a sale by the widow without the direction of the judge of probate will be treated as void; citing Richardson v. Crooker, 7 Gray, 190; Kissam v. Dierkes, 49 N. Y. 602; Powles v. Jordan, 62 Md. 499.</p>

<p>Error to Kent. (Adsit, J.)</p> <p>Trover. Defendant brings error.</p> <p>The facts are stated in the opinion, and in 93 Mich. 143.</p>

(O’Hara, J.) Appeal from the allowance of a claim in probate court. Claimant brings error from a judgment of disallowance in the circuit court. The facts are stated in the opinion.

<p>Accident at railroad crossing — Duty to listen — Contributory negligence.</p> <p>1. A traveler is never justified in assuming that he can surely drive a certain distance, and cross a railroad track, before a train can reach the crossing, unless it be shown that he has had an uninterrupted view of the track for so great a distance as to justify such assumption.</p> <p>2. Plaintiff is held to have been guilty of such negligence in failing to stop his team and listen for a fast train, which he knew was about due, while driving, after dark, a distance of 196 feet in approaching a railroad crossing, during which time his view of the track was obstructed, as to bar a recovery.1</p>

<p>Error to Alpena. (Simpson, J., presiding.)</p> <p>Replevin. Plaintiff brings error.</p> <p>The facts are stated in the opinion.</p>

(Adsit, J.) Bill for an accounting. Defendants Converse and Stevens appeal from an order overruling demurrer. The facts are stated in the'opinion.

<p>Appeal from Wayne. (Gartner, J.)</p> <p>Bill for specific performance of contract. Defendants appeal.</p> <p>The facts are stated in the •opinion.</p>

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

(Edget, J.) Bill to determine the ownership of the proceeds of a life-insurance policy. Complainant appeals. The facts are stated in the opinion.

Exceptions before judgment from Calhoun. (Hooker, J.) Eespondent was convicted'of obtaining money by means of false pretenses. The facts are stated in the opinion.

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

(O’Hara, J.) Respondent was' convicted of burning the dwelling-house of another in the day-time, and sentenced to imprisonment in the State prison for nine months. The facts are stated in the opinion.

Mandamus. Eelator applied for mandamus to compel respondent to vacate an order directing an amended return on appeal from justice’s court, and an order conditionally dismissing the appeal. The facts are stated in the opinion.

<p>Error to Mecosta. (Palmer, J.)</p> <p>Relator applied to the circuit court of Mecosta county for mandamus to compel respondent to pay a certain sewer tax assessed against the property of the county, and brings error to review the order denying the writ.’</p> <p>The facts are stated in the opinion.</p>

<p>Will — Mental capacity — Competency of witness.</p> <p>An intimate acquaintance of five years with a testatrix, terminating six years before she made her will, and frequent conversations with her during that period about her children, her life, and the hardships she had gone through, do not render the witness testifying to such facts competent to express an opinion as to the competency of the testatrix to make the will; citing Prentis v. Bates, 93 Mich. 242; O’Connor v. Madison, 98 Id. 188.1</p>

Information in the nature of quo warranto to test the title of respondent to the office of Secretary of State. The facts are stated in the opinion.

Information in the nature of quo warranto to test the title to the office of warden of the State House of Correction and Beformatory at Ionia. Belator moves to strike rejoinders from the files. The facts are stated in the opinion, and in 98 Mich. 96.

. Certiorari to Kent. (Grove, J.) Relator applied for mandamus to compel respondent to proceed to pave a portion of South Ionia street, in the city of Grand Rapids, in pursuance of a resolution of the common council. Respondent brings certiorari to review order granting the writ. The facts are stated in the opinion.

(Newton, J.) Petition for further order of sale, founded on decree in suit to foreclose a mortgage. Complainant appeals. The facts are stated in the opinion.

<p>Schools and school-districts — Purchase of supplies — Validity of order — Special meeting — Petition—Notice—Evidence. ■</p> <p>1. A purchase by school-district officers of “Yaggy’s Geographical Chart” can only be made so as to charge the school-district when authorized by a vote of the qualified electors thereof, lawfully assembled; citing'How. Stat. § 5073, subd. 6.1</p> <p>2. In order to establish a legal school meeting under How. Stat. § 5047, which provides that it shall be the duty of any member of the district board to call a special school meeting on the written request of not less than five legal voters of the district, the evidence must show that a legal petition was presented, and a legal notice of the meeting given.</p> <p>3. Proof that a legal notice was given will not show that a legal petition°was presented, nor can such latter fact be established by evidence of the admission of the director, who signed the notice, that he received such a petition.</p>

(Hosmer, J.) Bill to restrain the defendant from paying out money or entering into contracts. Complainant appeals from order sustaining demurrer. The facts are stated in the opinion.

<p>Partnership — Dissolution—Liability of retiring partner — Assign- ■ ment of account — Action by assignee — Pleading.</p> <p>1. Where, in a suit against two defendants as copartners, it appears that the plaintiff had dealt with the defendants at a time when it was admitted that a partnership existed; that no notice of dissolution had been given; that the business was being conducted under the firm name at the time the goods, to recover the purchase price of which the suit is brought, were sold, the same as before the time one of the defendants claims to have retired from the firm; and that letters were written with the firm 'heading, and with said defendant’s name appended thereto, as before the alleged dissolution,— said defendant remained as to the world, ostensibly, a partner, and is liable as such to the plaintiff.* 1</p> <p>2. The assignment of an open account, upon which suit is brought by the assignee under How. .Stat. § 7344, is sufficiently averred by attaching the assignment to the account, and both to the common-count declaration by which the suit is commenced, and serving copies of said papers on the defendant.2 34.</p> <p>3. "Where, in a suit brought to recover the amount due upon two open accounts, a copy of each account, and an affidavit of the amount due thereon, made pursuant to How. Stat. § 7525, are attached to the declaration filed as commencement of suit, and copies are served upon the defendant, who, in his counter affidavit, only refers to one of the accounts and affidavits, the remaining affidavit is prima facie evidence of the indebtedness therein sworn to.* 1</p>

<p>Error to Clare. (Hart, J.)</p> <p>Trespass. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

(Cobb, J.) Relator applied for mandamus to compel the respondent to draw an order on the city treasurer for the payment of his salary as sidewalk inspector, and brings error to review the order denying the writ. The facts are stated in the opinion.

(Palmer, J.) Defendants appeal from an order granting a writ of assistance, and from an order refusing to recall said writ. The facts are stated in the opinion.

(Person, J.) Bill to restrain the erection of a building in a public alley. Complainants appeal. ■ The facts are stated in the opinion.

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

<p>Dee<F-After-acquvred title — Estoppel—Fraudulent conveyances.</p> <p>Where the title to land purchased by a wife with her own money from an administrator is taken in the name of her husband, and he conveys the land to her by warranty deed, a second deed executed to him by the administrator under proceedings taken to cure a defect in the first deed, growing out of the want of proper proceedings upon which to base it, inures to the benefit of the wife, and there is no need of a second conveyance from the husband to perfect her title.</p>

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

Mandamus. Eelator applied for mandamus to compel respondent to make an order requiring the executors of the estate of Lucy W. S. Morgan to make answer to certain interrogatories. The facts are stated in the opinion. 1

(Brevoort, J.) Bill to restrain the sale of. certain lands upon assessments made in a street-opening case. Defendants appeal. The facts are stated in the opinion.

<p>Sale — Passing of title.</p> <p>This case is ruled as to the law by the former decision, reported in 91 Mich. 571; and, the facts there directed to be submitted to the jury having been found against the defendants under & charge in all things fair to them, the judgment in favor of the plaintiff is affirmed.</p>

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

(Haire, J.) Relators applied to the circuit court for mandamus to-compel the respondents to issue certain bonds in payment, for water-works. Respondents bring certiorari to review orders .granting the writs. The facts are stated in the opinion.

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

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

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

(Smith, J.) Bill to enjoin the opening of a highway across complainants’ premises. Complainants appeal. The facts are stated in the opinion.

<p>Pleading — Injury to personalty — Evidence—Error without prejudice —Instructions to jury.</p> <p>1. It would be over-technical to say that a smokestack was not included in “a shmgle-mill outfit, consisting of engine, boiler, belts, saws, pulleys, and other machinery.”</p> <p>2. The erroneous admission of evidence becomes unimportant when the evidence is rendered immaterial under the charge.</p> <p>8. Where after instructing the jury, in an action to recover damages for injury to machinery in removing it from a mill, that the defendant must have removed the machinery in such a way as not to cause any injury, the jury are further instructed that the defendant is liable only if he removed the machinery in an improper manner, so that it was injured, no room is left for misapprehension.</p>

<p>Error to Saginaw. (Edget, J.)</p> <p>Assumpsit. Defendant brings error.</p> <p>Plaintiff sued defendant for - rent accruing upon a written lease. The defense was an accepted surrender of the' premises. The court below held that there was no question for the jury, but that the case was governed by Stewart v. Sprague, 71 Mich. 50, and Scott v. Beecher, 91 Id. 590, and directed verdict; for plaintiff, with the following remarks:</p> <p>“ It appears that a lease was 'made in the case at bar on the 24th day of April, 1890, and extending for a period of one year, by the plaintiff with the defendant, whereby the defendant undertook to pay at the rate of $14 per month, monthly in advance, during the entire period of 12 months ensuing the date of rental. That imposes an obligation upon his part to pay the full sum of $168 for the accrued rental of that year, and he could not, of his own motion, on any proof in the case, terminate that rental, and release himself from the obligation to pay that, without the consent of the landlord. * * * But it appears that on the 14th day of October of the same year the defendant wrote a letter to the plaintiff, inclosing him the rental that was due from the previous payment of September 24 up to the 14th day of October, and stating to him, substantially, that he proposed to vacate the premises, and also inclosing the key, and deposited that in the box for the reception of mail at the office of Mr. Joslin. There was* no interview between the parties; nothing that would indicate the permission of the plaintiff to vacate the premises at the, time of the surrender of this key, except as contained in this letter. * * * Mr. Joslin appears, under the evidence in the case, after the premises have been vacated by the. defendant, to have taken possession, put up his card f To Bent/ and undertaken to rent the premises, and, as he claims, thereby diminishing the loss that might ensue by their being vacant. I charge you, as a matter of law, that he was exercising the right, as landlord, that he ought to exercise, on the surrender of this key; that the key was surrendered by letter deposited in the box, and coming into his hands without any express notification of the reasons why he vacated the premises. There was- no duty upon his part to search out the defendant, and to serve him with notice, in any formal fashion, that he proposed to hold him for the rent; and it was his duty, as a landlord, —the defendant having actually vacated the premises, and surrendered the key, which was the evidence of his dominion, — it was the duty and the right of the plaintiff to take possession, which he did take, and undertake to diminish as far as possible the resulting damage by renting it to other parties; and I think he may do that without any formal notice, upon his part, to the defendant, that he,proposed to hold him for the rent, because, as I have said, the key was surrendered in a method which precluded the plaintiff from stating at the time of the receipt of the key that he proposed to hold 'the defendant for the rent. The defendant himself selected a method of surrendering the key, instead of going personally to the plaintiff, and taking it back, and getting his statement of whether he accepted it conditionally or unconditionally. He elected to- leave it, and leave it in such a way as there could be no answer on the part of the plaintiff as to whether he accepted it conditionally or otherwise, unless he sought out defendant after the premises had been vacated, and expressed the fact to him. I do not understand he could throw any such burden upon the plaintiff. The plaintiff, therefore, having pursued the rights he was entitled to pursue, is entitled, in this case, to hold the defendant for the payment of the accrued rent.”</p>

<p>Appeal from Oakland. (Moore, J.')'</p> <p>Judgment creditors’ bill. Complainants appeal.</p> <p>The facts are stated in the opinion.</p>

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

<p>Contract — Master and servant — Wrongful discharge — Damages— , Burden of proof.</p> <p>In an action by a servant to' recover damages for his wrongful discharge, the burden of proof is upon the master „to show what, if any, effort was made by the servant to obtain employment during the remainder of the period for which he was hired; citing Farrell v. School-District, 98 Mich. 43.</p>

<p>Case made from Osceola. (Judkins, J.)</p> <p>Assumpsit. Defendant assigns error.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Wayne. (Reilly, J.)</p> <p>Bill to restrain the construction of a pavement. Complainants appeal.</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>Error to Bay. (Cobb, J.)</p> <p>Assumpsit. Defendants bring error.</p> <p>The facts are stated in the opinion.</p>

<p>Muniaipal corporations — Taxes—Assessment—Board of revieic— Waiver.</p> <p>1. The right to a hearing by the assessor, sitting as a board of review, as provided by a village charter, is one of which a 'tax-payer cannot be lawfully deprived; citing Cooley, Tax’n, 266, 267, and cases cited; Avery v. East Saginaw, 44 Mich. 587.1</p> <p>2. The action of a village assessor, sitting as a board of review, on the last of the review days, in determining, fixing, and entering for the first lime the amount of personal property for which' a tax-payer is assessed, is a departure in a substantial matter from the provisions of the charter, which requires the assessor,' after completing his assessment roll and valuation of real and personal property, to give notice of the time and place for reviewing the same, and, on sufficient cause being shown upon oath to his satisfaction, to reduce such valuation.</p> <p>3. The tax-payer will not be held to have waived this statutory right by reason of a conversation had with the asstssor at the time of the assessment of his real estate, in which the matter of the assessment of personal property was discussed but not determined, and the tax-payer notified of the time and place of review.</p> <p>4. The provisions of the general tax law making it applicable to villages when not inconsistent with their charters, and providing for the addition to the assessment roll by the board of review, during its first meeting, of personal property and real estate omitted from said roll, cannot be invoked to validate the action of the assessor of a village in making such addition of personal property on the last review day, where the charter, unlike the general tax law, does not provide for a second meeting of the board of review.-</p>

(Hosmer, J.) Relator applied for mandamus to compel the payment of attorney’s fees in a criminal case, and brings certiorari to review order denying the writ. The facts are stated in the opinion.

<p> Compensation of attorney appointed to defend criminal. </p> <p>1. The case of Springer v. Board of Auditors, ante, 513, in which it was held that the “ enlarged compensation,” to which an attorney appointed to defend in a criminal case, and who removes the case to the Supreme Court, is entitled under How. Stat. § 9047, must be fixed by that Court, is overruled, being in conflict with section 10, art. 10, of the Constitution, to which the attention of the Court was not called, which vests in the board of auditors of Wayne county, and in the boards of supervisors of the counties generally, the exclusive power to prescribe and fix the compensation for all services rendered for, and to adjust all claims against, their respective-counties, and provides that the sum so fixed or defined shall be subject to no appeal.</p> <p>2. The section of the Constitution cited does not give to the boards there mentioned unlimited authority to allow or disallow at will all claims that may be presented to them; citing Endriss v. Chippewa Co., 43 Mich. 317.</p>

<p>Municipal corporations — Street-car passengers — Injury from trolley poles.</p> <p>While a city is bound to see that the construction of the tracks of a street railway does not necessarily interfere with or endanger other uses of its streets, it is not an insurer of street-car passengers against defects in the street-car system itself.</p> <p>So held, where a passenger, while standing upon one of the side boards of a street car, came in contact with one of the trolley poles, which were placed in the gutter, outside of the way intended for travel, and was injured, it appearing that the city did not fix or direct the precise location of the tracks or of the trolley poles, or determine the width of the cars.</p>

<p>.‘Statute of frauds — Promise to pay the debt of another — Novation —Evidence.</p> <p>1. Where under an arrangement between the heirs of a deceased mother, who held a chattel mortgage on the stock of goods of one of her sons as security for her indorsements of his notes, which are held by another son, who has been appointed special administrator of her estate, the goods are turned over to the administrator, and the mortgagor assumes the care of his aged father, and the administrator agrees with the owner of the store in which the business was being carried on to pay the balance due for rent, the arrangement amounts to more than a mere concession or surrender by a mortgagor to a mortgagee, and an action will lie upon the agreement to pay the rent.</p> <p>2. The plaintiff may testify to statements made to him by the mortgagor relative to the family understanding, which were afterwards confirmed in detail by the defendant in a conversation with the plaintiff, such testimony being competent as tending to show the release of the original debtor from liability for the rent.</p> <p>3. An objection to testimony of the contents of a paper in the absence of proper notice for its production is waived by the concession, of counsel for the objecting party, under which further testimony of the same character is introduced without objection.</p>

<p>Highways — Discontinuance—Proceedings by board of supervisors —Certiorari—Parties.</p> <p>1. Where, in certiorari to review the proceedings of a highway commissioner discontinuing a highway, it appears that his action was predicated upon the alleged discontinuance of the highway by the board of supervisors of the county, and the proceedings of said board are returned by the county clerk, who is joined as a respondent, an objection that the board of ■ supervisors should also have been joined is untenable.</p> <p>2. Notice to an occupant of land traversed by a highway, with reference to which his houses, wells, barns, and orchards have been located, of its proposed discontinuance by the board of supervisors, under How. Stat. §§ 497, 498, is essential to the validity of the discontinuance proceedings.1</p> <p>3. The use of a highway, as such, for eight years after its discontinuance by the board of supervisors .of the county, makes it a public highway by virtue of such subsequent user, under How. Stat. § 1315, which provides that “ all roads which have been or which may hereafter be laid out and not recorded, and which shall have been used eight years or more, shall be deemed public highways.”</p>

<p>Drains — Payment of tax under protest — Action to recover amount —Failure to file record■ of drain.</p> <p>An action will not lie to recover drain taxes paid under protest on the ground of the failure to file in the office of the county clerk the record relating to the construction of the drain, as required by 3 How. Stat. §§ 1740a9, 17406.</p>

<p>Liquor traffic — Civil damage act- — Constitutional law — Sale to minor — Evidence.</p> <p>1. Section 20 of Act No. 313, Laws of 1887, which makes any person who sells or furnishes intoxicating liquors to a minor liable for both actual and exemplary damages therefor to the father or mother in such sum, not less than $50 in each case, as the court or jury shall determine, is not open to the objection that, in authorizing the recovery of a fixed sum without proof of actual damages, it amounts to the taking of property without due process of law.</p> <p>2. The. Legislature but recognized a well-known fact in assuming that a sale of intoxicating liquors to a minor son of necessity works an injury to any parent to whom the information comes of such a disregard of right.</p> <p>3. It is competent for the defendant, in a suit by a mother to recover damages for the sale of liquor to her minor son, to show in mitigation of damages that .the plaintiff had been in the habit of furnishing the boy liquor, and had furnished him liquor until he became intoxicated from its use.</p>

<p>Husband and wife — Joint and several note — Liability of wife</p> <p>1. The mere fact that a wife is the legal owner of a farm, upon which she resides with her husband and family, and which she allows him to use as a means of obtaining a livelihood for himself and family, will not make her liable upon their promissory note given to an employe, who hired to the husband, and worked upon said farm, and upon another piece of land owned by another party, but worked by the husband, for the balance due the employe for such labor.* 1</p> <p>2. A wife, by allowing her husband to pay a portion of his indebtedness with her money, does not thereby make herself liable to pay the remainder of the debt.</p>

Information in tbe nature of quo warranto to determine tbe title to tbe office of clerk of Wayne county. Issues of fact were sent to tbe Oakland circuit for trial, upon wbicb tbe jury found in favor of relator, wbo now moves for judgment of ouster. The facts are stated in tbe opinions, and in 94 Mich. 505, 97 Id. 568.

<p>Appeal from Kent. (Grove, J.)</p> <p>Bill in aid of execution. Complainants appeal from a decree on accounting.</p> <p>The facts are stated in the opinion.</p>

<p>Accounting — Appeal.</p> <p>1. On an appeal from a decree on an accounting, the appellant’s objections only will be considered; citing Ryan v. Brown, 18 Mich. 212; Bundy v. Youmans, 44 Id. 376; Sweeney v. Neely, 58 Id. 421.</p> <p>2. The only instance in -which this rule is departed from is when a restating of the account requires that, because of such different method of computation, an apparent error should be corrected.</p>

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

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

(Gartner, J.) Bill to declare the defendants to be trustees of certain church property, for complainants and certain others, and to restrain them from conveying the same. Complainants appeal. The facts are stated in the opinion.

<p>Contract — Breach—Damages—Delay in furnishing material.</p> <p>In a suit to recover the balance due for materials furnished for the construction of a-building, it appeared that there was an unreasonable delay of from four to six weeks immediately prior to January 1, when the building was completed, in delivering the materials, and that there were heavy rain storms in the previous December, which, by reason of the roofless condition of the building, filled the basement with water and caused the foundation walls to settle. The defendant sought to recoup the resulting damages. And it is held that the delay was not the direct and proximate cause of the coming of the storms or of the damages; and their recovery is denied.</p>

Exceptions before judgment from Lenawee. (Lane, J.) Respondent was convicted of the crime of arson. The facts are stated in the opinion.

(Buck, J.) Respondent was convicted of breaking and entering a flouring-mill in the night-time, with intent to commit the crime of larceny, and sentenced to imprisonment in the State prison for five years. The facts are stated in the opinion.

(Daboll, J., presiding.) Attachment under log-lien law. Defendant log-owner brings error. The facts are stated in the opinion.