APPEAL AND ERROR-Continued.
to this court the above facts, and also that certain matters
should be included, in order to review the case properly. It
appearing to the satisfaction of this court that certain mat-
ters should have been included in the bill of exceptions, and
that the trial judge would have granted plaintiff's applica-
tion had his attention been called to it in time, plaintiff's
motion to again remand is granted upon condition that he
proceed at once to propose amendments, and cause such as
may be allowed to be printed and attached to the record
without any expense to defendant. Kaiser v. Detroit United
Ry., 56.
6. By the issuance of a writ of possession, by accepting the pay-
ment of costs, and by enforcing, by threats that the writ will
be executed, a compliance with portions of a judgment in
ejectment favorable to appellant after settling a bill of ex-
ceptions, an appellant precludes itself from reviewing the
Clairview Park Improvement Co. v. Detroit,
cause on error.
etc.. Ry., 74.
7. A new trial should not be granted for failure to be sufficiently
specific in instructing the jury, when no requests were
offered by appellant on the point raised. Wendt v. Village of
Richmond, 174.
8. On a motion for permission to file an appeal bond in a foreclos-
ure suit in which, after a decree of foreclosure, the defend-
ant appealed without giving the statutory bond, and com-
plainant proceeded to sell the premises and bid them in, and,
on a showing that the premises were worth nearly three
times the amount of the mortgage lien, and that the defend-
ant had tried to bring her appeal on for hearing at the pres-
ent term of court, but the cause could not be heard because
of the failure of the attorneys for the mortgagee to file their
brief, an order was entered permitting the filing of the bond
nunc pro tunc and staying the proceedings under the author-
ity of Act No. 299, Pub. Acts 1909, and Coeling v. Barnard,
159 Mich. 634 (124 N. W. 533). Commercial Nat. Bank v.
Gaukler, 215.
9. In a suit to enjoin a municipal corporation from interfering
with the performance of a contract with complainant for
paving a street, after the accomplishment of the work by the
contractor, complainant is, nevertheless, entitled to review
on appeal a decree in which its contract was declared void
upon defendant's cross-bill, and complainant restrained from
enforcing the contract in an action at law. Central Bitu-
lithic Paving Co. v. Village of Highland Park, 223.
10. A judgment of the circuit court, dismissing an appeal from the
judgment and action of a township board, in proceedings to
open a highway, under Act No. 195, Pub. Acts 1905, and 2
Comp. Laws, § 4042 et seq., is a final judgment, reviewable
on certiorari, and therefore will not be vacated on manda-
mus. (3 Comp. Laws, § 10497.) Hartz v. Wayne Circuit
Judge, 231.
11. Proceedings which are purely statutory, and not after the
APPEAL AND ERROR-Continued.
course of the common law, are not reviewable by writ of
error. Id.
12. Prejudicial error is not shown, on the trial of a cause before
the court without a jury, by the admission of testimony which
the trial court stated was, in his opinion, inadmissible, and
which does not affirmatively appear to have affected the re-
sult. Markey v. Mut. Benefit Life Ins. Co., 350.
13. Alleged errors of the court, in a cause tried without a jury,
are not reviewable, where no findings of fact or law were re-
quested or made, and the assignments merely allege error in
rendering judgment for the defendant. Id.
14. After the overruling of a demurrer to the sufficiency of a bill
of complaint, and the filing of an answer to the bill, the
pleading is not open to objection on appeal. McManus v.
City of Petoskey, 390.
15. A defendant in a suit in equity, who is made party defendant
by a co-defendant's cross-bill, is an opposite or adverse party to
such co-defendant on proceedings to perfect an appeal from
the dismissal of the cross-bill. Winegar v. Fritz, 427.
16. Where a defendant, who asks relief in a cross-bill against an-
other defendant, receives no notice from such cross-defendant
of the entry of a decree dismissing his cross-bill, the provis-
ions of chancery rule 37 (158 Mich. xxix) do not apply, and
the court has authority under Act No. 299, Pub. Acts 1909, to
extend the time for settling a case, after the expiration of
sixty days from the entry of the decree, although no exten-
sion has been obtained during the sixty-day period. Id.
17. Appellant had a reasonable time, after denial of a motion for
a new trial, in which to settle his bill of exceptions. Pettin-
ger v. Montmorency Circuit Judge, 463.
18. After the court had granted thirty days for that purpose, it
might, for cause shown, upon sufficient notice by appellant
to opposing counsel, make a further extension of time. Id.
19. And the discretion of such court, exercised upon a showing
sufficient to call for the exercise thereof, will not be reviewed
on mandamus. Id.
20. Chancery cases on appeal are heard de novo in the Supreme
Court, which makes its own decree. Kelley v. Gaukler, 519.
21. While Act No. 340, Pub. Acts 1907, does not require a bond on
appeal except to stay proceedings, the construction of the
bond need not therefore be different than that prevailing un-
der the previous statute, which required the bond to perfect
an appeal. Id.
22. In a suit to foreclose a mortgage executed by husband and
wife on an estate by the entireties, the wife has such an in-
terest as entitles her to appeal from a decree of foreclosure,
denying to the defendants relief under their cross-bill where-
in it was averred that the mortgage was secured by fraudu-
lent representations of complainant's agent, and that, in reli-
ance on such representations, defendants transferred their
APPEAL AND ERROR-Continued.
homestead in exchange for the property covered by said
mortgage, which was executed as a part of the transaction;
the appellant claiming the right to a release from personal
liability on the mortgage, but not to rescission of the entire
transaction; and a motion to dismiss the wife's appeal is
therefore denied. Davis v. Wardowski, 561.
23. In reviewing a judgment on a verdict directed for defendant,
the plaintiff is entitled to a consideration of the evidence in
the aspect most favorable to him. Orso v. Great Lakes En-
gineering Works, 568.
See COMPROMISE AND SETTLEMENT (3); CRIMINAL LAw (9);
DIVORCE (1); EMINENT DOMAIN; EQUITY (6); JUDGMENT
(2); JUSTICES OF THE PEACE (3); MANDAMUS (1, 6); TRIAL
(10, 11).
APPEAL BOND, DISCHARGE OF-See JUSTICES OF THE PEACE
(1).
APPOINTMENT-See PUBLIC OFFICERS (2).
APPROPRIATIONS-See MUNICIPAL CORPORATIONS (1-3).
ARGUMENT OF COUNSEL See APPEAL AND ERROR (1); TRIAL
(10, 11).
ASSESSMENT See TAXATION (8, 9).
A contract to heat an office building with steam at specified
rates is assignable by the owner to a purchaser of the prop-
erty. Voigt v. Murphy Heating Co., 539.
See GIFTS (2, 3); SPECIFIC PERFORMANCE (2).
See CONTRACTS (1); LIMITATION OF ACTIONS (1).
ASSUMPTION OF RISK-See MASTER AND SERVANT (4–7, 15, 20).
ASSURANCE AS TO SAFETY-See MASTER AND SERVANT (11).
ATTORNEY AND CLIENT-See ACCOUNTING; MUNICIPAL COR-
PORATIONS (15–18).
AUTHORITY OF VILLAGE PRESIDENT -See MUNICIPAL COR-
PORATIONS (16).
Plaintiff was leading his horse along the highway when de-
fendant approached in his automobile. The horse became
frightened while the car was some distance away, and, as de-
fendant came nearer, reared, struck plaintiff down and in-
jured him. Plaintiff did not signal for the driver to check
the machine. Held, that the questions of negligence and
contributory negligence were for the jury. Cusick v. Kin-
ney, 25.
See STREET RAILWAYS (1, 2).
BAGGAGE-See CARRIERS (3, 4).
Deposit for partial payment, see SALES (1).
BANKRUPTCY.
Surety on appeal bond not released by discharge of principal
in, see JUSTICES OF THE PEACE (1).
BILL OF PARTICULARS-See MANDAMUS (6).
BILLS AND NOTES-See EXECUTORS AND ADMINISTRATORS (4);
TRUSTS (7).
BOARDING CARS-See CARRIERS (6-9).
BOARDS OF SUPERVISORS See INTOXICATING LIQUORS (11-13);
MANDAMUS (8).
BONA FIDES-See TAXATION (11).
BONDS See APPEAL AND ERROR (8, 21); CONSTITUTIONAL LAW
(5-7); FORECLOSURE (1, 4); JUSTICES OF THE PEACE (1).
BOUNDARIES.
The owner of land bordering on a stream, whether navigable
or not, owns the bed of the stream to the thread thereof.
People, ex rel. Bird, v. Grand Rapids-Muskegon Power Co.,
121.
BRAKES-See MASTER AND SERVANT (17-21).
BREACHES OF THE PEACE-See LIBEL AND SLANDER (2, 5).
BROKERS.
1. Evidence that defendant told plaintiff he would pay a commis-
sion of $500 if plaintiff would sell his farm, fixing the price
at $16,000; that defendant offered the purchaser which plain-
tiff secured certain additional crops and personal property at
the price named, and offered to sell the bare farm for $14,500;
that he subsequently sold the premises to the same party at
$15,500, warrants a finding by the jury that the contract was
one of ordinary agency, and the vendor retained control of
the selling price, which he modified during the negotiations
until a satisfactory agreement was reached; and a verdict
for the broker's commissions was justified. Prindle v. Allen,
553.
2. That the sale was made at a price lower than plaintiff was
first instructed to ask, did not defeat the broker's right to
compensation. Id. 554.
BUDGET-See MUNICIPAL CORPORATIONS (1).
See HUSBAND AND WIFE (6, 8); ME-
BURDEN OF PROOF See COMPROMISE AND SETTLEMENT (3);
RAILROADS (1); Taxation (6, 7); TRUSTS (9).
1. It is sufficient evidence of the corpus delicti, in a prosecution
for breaking and entering a store, that the rear door was
broken open while the store was closed for the night, and
that articles were taken from the stock. People v. Trine, 1.
2. Although the court may not be able to say that the elements
of the crime have been proved beyond a reasonable doubt,
the testimony should be submitted to the jury, if it tends to
establish the necessary elements. Id.
3. Whether or not the store was broken into in the nighttime, is
a question for the jury, where the breaking occurred after
the store was closed at nine o'clock in the evening and was
discovered before sunrise, about seven o'clock next morning.
Id.
4. It was error to admit evidence that respondent had in his
possession, at the time of his arrest, a suit case and other arti-
cles similar to goods kept in the store, where the articles in
respondent's possession were not shown to have been the
property of the merchant, or identified as taken from the
store. Id.
BURIAL OF DEAD-See HUSBAND AND WIFE (9-13).
CANCELLATION OF INSTRUMENTS.
1. Under evidence that deeds were executed by a mother to her
daughter, of all her real property, reserving only a life estate,
while the mind of the grantor was enfeebled, and while she
was in a condition that rendered her, to a certain extent, in-
competent to understand business matters, and upon proof
tending to show that the grantor had no intention of parting
with title to the property, but failed to appreciate the legal
effect of the conveyances, which was not fully explained to
her, a decree canceling the deeds on the ground of mistake
is warranted. McGraw v. Muma, 117.
2. Averments of a bill of complaint for the cancellation of a deed,
that defendant was the confidential agent of the grantor, and
employed undue influence and fraud to secure the deed, and
that the grantor was feeble in mind and body, and under the
influence of the defendant, are sufficient on general demur-
rer. Gragg v. Maynard, 535.
See EQUITY (2); QUIETING TITLE.
CANCELLATION OF INSURANCE POLICY-See INSURANCE.
CARRIERS.
1. An inspection of a car load of plums, made by the consignee
without authority of the carrier, and without paying a sight
draft to which the bill of lading of the plums was attached,
was not a delivery, where the consignee thereafter rejected
the goods as imperfect. Yuille-Miller Co. v. Chicago, etc.,
R. Co., 58.
2. Where plaintiff received a letter and telegram from the con-
signee, plainly indicating that there had been no delivery or
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