J. A. Fay & Co. v. James Jenks & Co.-Continued.
releases the indorser-Amount of damage sustained on
account of such violation is unimportant.
JAMES JENKS & Co., J. A. FAY & Co. v..
JOLLY V. DETROIT, LANSING & NORTHERN RAILROAD Co.... 370
Negligence case-Section foreman who, instead of using
a hand-car and section men furnished by the company
for the purpose of making an inspection, goes alone
on a railroad tricycle, and fails to keep a lookout
for extra trains, notice of which he knows is not
given by the company, is guilty of such negligence
as bars a recovery for injuries received by being run
down by an extra train.
JOHNSON, RIPON KNITTING WORKS V...
Ejectment-To recover possession of premises occupied as a homestead-Wife is a necessary party.
Replevin-Duty of officer to see that no articles are taken except those described in his writ-DemandNot necessary before bringing trover for articles not so described, and taken with the officer's knowledge-Teamster who knowingly assists an officer in taking articles not described in his writ, and refuses to return them to the place from which they were taken, is liable for their conversion.
KENYON, PEOPLE V.............
KERR, CHALLENGE WIND & FEED MILL Co. v........
KING V. FORD RIVER LUMBER CO..................
Master and servant-Master is liable for injuries to servant, resulting from his exposing the servant to dangers which he is incapable of appreciating-If injury was received in consequence of a risk not ordinarily incident to the employment, growing out of the master's negligence, the burden is upon the master to show that the servant knew and understood the increased danger-EvidenceJury may believe a witness, notwithstanding he may have made statements inconsistent with his testimony. KNIGHT V. HARTMAN.
Mortgage-Deed of mortgaged premises to the heirs of the
mortgagee, who surrender the mortgage, and execute
a contract of sale to the mortgagor-Whether the transac-
tion amounted to an absolute sale or to a mortgage is a
question of fact for the jury, the testimony as to the
intent of the parties being conflicting.
KNOTTNERUS V. NORTH PARK STREET RAILWAY Co....
Negligence-Lease of right to operate a switch-back railway
at a pleasure resort-Lessor is not liable for the careless-
ness of the lessee.
KUX V. CENTRAL MICHIGAN SAVINGS BANK..........
Evidence-Bank pass-book is entitled to as much credit as
evidence of amount of deposit as the books retained by the
bank-Obscure figure in entry of deposit-If depositor and
bank disagree as to the sum intended to be represented
thereby, its true meaning is for the jury, who may be
aided by the opinion of expert witnesses.
LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO., Mc-
CASLIN V..
LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO., PARKER
LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO., SELLECK
LANDYSKOWSKI V. MARTYN....
Mechanic's lien-Decree in favor of complainant affirmed.
LATHROP V. ELSNER....
Right of way-Equity will enjoin interference with-Reser-
vation of through tract of land abutting on a highway, to
enable the grantor to reach the highway from the
unconveyed portion of the tract, creates an easement
appurtenant to the unconveyed land-Word "heirs" is
not essential to the creation of such an easement-Mere
non-user for 20 years will not extinguish an easement-If
conveyances through which a land-owner holds expressly
reserve a right of way for the benefit of another land-
owner, the possession of the former will not be presumed
to be adverse to the rights of the latter-Such presumption
will be raised by acts bringing home to the latter notice of
the intention of the former to repudiate the existence of
the right of way.
Mortgage-Application of payments-Remittance to mort-
gagee, who holds a real-estate and chattel mortgage, of a
certain sum with directions to apply it on the real-estate
mortgage Second mortgagee, who furnished the money,
can enforce such application-Is not estopped by after-
wards receiving a deed of the land from the mortgagor,
the amount not applied not being deducted from the pur-
chase price.
Evidence-Of deceased plaintiff given in justice's court-
May be used on the trial in the circuit on defendant's
appeal-Suit for services claimed to have been performed
for an agreed compensation-If plaintiff fails to estab-
lish the agreement as to compensation, he can recover
upon a quantum meruit, if jury find that he was employed
to perform the services-Suit by clerk to recover for
Lewis v. Roulo--Continued.
work performed after office hours for an agreed extra
compensation-Proof of manner in which he performed
his regular work is immaterial.
Special findings of fact-Are controlling, if the evidence
tends to support them-Partnership-Suit by retiring part-
ner on agreement made by two of the remaining partners,
who purchased his interest, to pay certain commissions
earned by him when the commission orders were paid
by the purchasers-Defendants may show as a defense
the payment of a portion of the commission by the
firm before their purchase, and the non-payment of
the remaining orders.
LOUD & SONS LUMBER CO., CONTINENTAL INSURANCE Co. v... 139
LUMBERMAN'S MINING Co., DAVIE V...
LUNBOM V. CITY OF MANISTEE
Injunction-Will not issue to restrain the collection of a
paving tax where complainants have reaped the benefit
of the contractor's work, without asking for relief, and
with knowledge that their lands were so situated as to
be assessable for the improvement.
MAHONEY V. DETROIT STREET RAILWAY Co...................
Street railways-Duty of passenger to secure evidence of
the payment of fare-Conductor is under no legal obli-
gation to accept passenger's statement as to that fact-
Passenger should pay his fare, and, if he has a valid
contract for passage, his remedy is against the company
for its violation.
MARTYN, LANDYSKOWSKI V...
MASON V. CITY OF GLADSTONE
Estoppel-A tax-payer, who joined with others in a suit
in which the taxes assessed to pay for a public improve-
Mason v. City of Gladstone-Continued.
ment were declared void and their collection enjoined,
is estopped from asking for a mandamus to compel the
payment of orders issued in payment of the improve-
ment.
MCCASLIN V. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY
Co.
Negligence case-Alighting from train after it has stopped
and again started, and the brakeman or conductor is
standing upon the ground inviting the passenger to
alight-Passenger is not guilty of negligence, unless the
speed of the train is such that the danger is obvious—
Averment that the train started before the plaintiff had
reasonable time to safely alight--Plain inference is that
the train was negligently started while the plaintiff was
in the act of alighting-Unnecessary to aver the exact
place where the plaintiff stood when the car started.
Judgment creditor's bill- Court has power to compel a dis-
covery-Decision in Riopelle v. Doellner, 26 Mich. 102,
and in Shelden v. Walbridge, 44 Id. 251, applies to a
bill of discovery in aid of a suit at law-Complainant
not entitled to file exceptions to the voluntary answer
of a corporation officer to such a bill.
MCFARLAN V. TOWNSHIP OF CEDAR CREEK.
Special highway tax-Cannot be levied upon the township
at large to pay indebtedness of road districts-Retirement
of orders drawn on the highway fund of a road district,
and issuance in their stead of a township order, will not
make the indebtedness a township charge-Payment
under protest-Protest held sufficient.
Mortgage-Assignment of an undivided half of a mortgage
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