Fraser v. Haggerty-Continued.
upon that subject-Not error to refuse to apply rule to
particular witness.
Highways - Discontinuance of -Commissioner's
must show that he viewed the premises, and deter-
mined the public necessity for discontinuance.
GAINOR V. CHEBOYGAN RIVER BOOM COMPANY..
Booming out"-Meaning of held properly left to the jury
under the conflicting evidence-Recoupment, as dam-
ages, of expense incurred by boom company in gather-
ing up loose logs scattered in lake by breaking of boom
late in the season, at a cost largely in excess of con-
tract price for their delivery by contractor, is denied,
the boom company not being shown to have been dam-
aged by the delay in delivering the remainder of the
logs until the following spring.
GEORGE T. SMITH MIDDLINGS PURIFIER COMPANY, IN RE...
Equity pleading-Foreclosure of mortgage-Failure to
allege that the children of the mortgagor, who are
joined as defendants under the general allegation that
they claim rights as subsequent purchasers, etc., are his
heirs at law, will be remedied by amendment in appel-
late court-Equity practice-Demand for examination of
witnesses in open court is of no force unless made
within ten days after cause is at issue-Defendant fail-
ing to make demand is not entitled to benefit of one
made by a co-defendant, who has waived it, or as to
whom the suit has been discontinued-Foreign will-
Statute providing for its probate does not require exec-
utor to give bond-Action by foreign executors, before
probate of will in this State, is made good by subse-
quent probate before the hearing-Quitclaim deed of
Gray v. Franks-Continued.
premises supposed to be covered by a mortgage-Held
to inure to benefit of mortgagee.
HAGAN V. CHICAGO, DETROIT & CANADA GRAND TRUNK JUNC-
TION RAILROAD Co....
Railroad companies-Liability for loss by fire-How. Stat.
§ 3378, construed as fixing the standard of condition and
management of trains, but as not establishing a stand-
ard of kind or quality of appliances, unless they are
shown to have been well and popularly known, and
that their efficiency has been demonstrated by actual use
-Running a freight train between given points at the
rate of 40 miles an hour to make up lost time is not in
itself negligence - Evidence of amount of insurance
received by owner of building is immaterial-Testimony
cannot be said to be undisputed when inconsistent with
an established fact in the case, or one regarding which
testimony has been admitted.
HALL, PEOPLE V...................
HAMILTON PROVIDENT & LOAN SOCIETY V. NORTHWOOD....... 315
Evidence-Admission of partial payment of mortgage debt
by sale of mortgaged premises, contained in bill of par-
ticulars of mortgagee's claim filed in a suit to recover
said debt, held competent evidence tending to show such
sale, and that the mortgagor was entitled to said credit,
in a subsequent suit-Burden is on plaintiff to show that
the admissions were made by mistake-Non-sale not
established by showing two attempts to make a sale,
and the withdrawal of the land from sale, and that, on
a subsequent examination of plaintiff's books, witness
found that no sale had been made-Such testimony is
incompetent.
HARRINGTON V. CITY OF PORT HURON.
Ejectment-Subject-matter must be tangible and capable
of delivery under writ of possession-Will not lie for a
mere trespass, right of way, or easement-Rule applied
to a case where a city constructed a sewer across gov-
ernment land, which was afterwards sold and patented,
and an action of ejectment brought to recover the land,
which it is held cannot be maintained against the city
-Sewer passed with the grant of the land.
HARVEY V. CITY OF HILLSDALE..
Negligence-City not liable for negligence of a contractor
and his men while performing work in which the city
is not interested.
HICKS V. TURCK.............
Specific performance-Contract must be free from any
charge or suspicion of unfairness or fraud.
Bond-Execution of by attorney in client's name in attach-
ment suit held valid, the client having ratified the
bringing of the suit.
IN RE ASSIGNMENT OF GEORGE T. SMITH MIDDLINGS PURIFIER
COMPANY
Assignment for benefit of creditors-Creditor may lose
right to complain of for fraud by waiver or acquiescence
-Removal of assignee-Proceedings for may be by
petition, in which receiver may be appointed-Court
having control of the assignment may restrain the
In re Assign't Geo. T. Smith Middlings Purifier Co.-Continued. prosecution of a suit in another county against the receivers-In order to warrant the imposition of a fine, and imprisonment in default of its payment, for such contempt, the court must find that the misconduct complained of was calculated to or did defeat, impair, impede, or prejudice the rights or remedies of a party in the assignment proceedings.
JENISON, VILLAGE OF GRANDVILLE V..
KALAMAZOO COUNTY PROBATE JUDGE, MUNGER V..
KALMBACH v. FOOTE....
Execution-Issued upon a judgment rendered on a guard-
ian's bond-Omission of statement that it is for the use
of the ward, as provided by How. Stat. § 5998, unim-
portant, where money is paid without levy.
Fraud-Procuring execution of mortgage.
Contract-Construction of-Payment-Set-off.
LAKE SUPERIOR SHIP CANAL, RAILWAY & IRON COMPANY V.
Fixtures-Agreement of parties to treat fixtures as per-
sonal property renders manner of annexation immaterial
-Mining lease-Lien upon such fixtures to secure rent,
being unrecorded, is worthless as against execution
purchasers.
LEE, SHOWMAN V...
LEMKE, MADDEN V..
LOMBAR V. VILLAGE OF EAST TAWAS.....
Negligence case-Plaintiff may produce and identify the
defective plank, and show that it was taken from the
walk at the place where he claims to have been injured
-Should be required to show nature of defect at the
time of and before the accident-When this is done,
and liability is disclosed, he need go no further-If not
done, it is error to predicate the existence of an action-
able defect upon the fact of subsequent repairs--May
show that others had stepped into the same hole in the
walk where he was injured-Villages-May require lot-
owners to construct, maintain, and repair sidewalks,
and, on their failure so to do, may do so at their
expense, and assess the cost upon their lots-Land-
owner may construct walk subject to prescribed regula-
tions, after which village is responsible as in other
cases-Duty to keep walks in repair is imperative, and
involves the duty of providing all that is necessary to
that end-Failure to do so for 15 months after incorpo-
ration will prevent village from pleading its own negli-
gence to defeat a recovery.
LOUD & SONS LUMBER COMPANY, CEEDER V......................
Sale-Construction of contract.
MANUFACTURERS' MUTUAL FIRE INSURANCE COMPANY, FAUGH-
NER V....
MARTIN LUMBER COMPANY, CITY OF MUSKEGON v..
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