6819, above quoted, it is not essential that the plaintiff,
being a nonresident, be personally present in the town
when the writ issues. In adopting this statute from New
York, it will be presumed to have been adopted with the
judicial construction previously placed upon it.
Judgment affirmed.

The other Justices concurred.

RANSPACH v. TEUTONIA FIRE INSURANCE CO.1

FIRE INSURANCE-VACANCY CLAUSE-WAIVER.

A condition in a policy of fire insurance that it shall be void if the building insured "be or become vacant, and so remain for 10 days," is not waived by the fact that, at the time an agent of the company consents to an assignment of the policy, he is informed that the building is then unoccupied.

Error to Wayne; Hosmer, J. Submitted June 3, 1896. Decided June 30, 1896.

Assumpsit by Charles C. J. Ranspach against the Teutonia Fire Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings Reversed.

error.

One Dillon obtained an insurance policy in the defendant company upon a dwelling house situated upon his land. The policy was the usual Michigan standard policy, and provided that it should be void "if the building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for 10 days." It further pro1 Rehearing denied October 6, 1896.

vided that all waivers of the conditions should be in writing, and that no agent or officer should have the power to waive such conditions unless in writing. The house was rented and occupied until Dillon sold and conveyed the land to plaintiff and his wife. The premises were vacant at the time of the fire, and had so remained for three months previous. No notice of vacancy or application for a permit had been made. About the time of the deed to plaintiff, Dillon took the policy to the local agents, stated that he had sold the land to plaintiff, and asked that the policy be assigned to him, which was done. At that time Mr. Dillon testified that he thought he told the agents that, at the time he was selling it, he saw the occupants were packing up ready to go out, and that they told him they were going. How long this was before the assignment does not appear. This is the sole testimony upon which the jury were permitted to find that there was a waiver of the clause as to vacancy, and to render a verdict for the plaintiff.

Corliss, Andrus & Leete, for appellant.

R. I. Lawson and D. B. Hayes, for appellee.

GRANT, J. (after stating the facts). We think the court should have directed a verdict for the defendant. Plaintiff accepted the policy subject to all its terms and conditions. He knew, or must be held to have known, that the policy would be void if the house remained vacant beyond 10 days. Even if the agent had been told that the house was vacant at the time of the assignment, this did not make a new contract to keep the property insured beyond the 10 days of vacancy. The proposition is too plain to require further argument or citation of authorities.

Judgment reversed, and no new trial ordered.
The other Justices concurred.

INDEX.

ABATEMENT-See DIVORCE (2); PLEADING (6).

ACCEPTANCE OF DEVISE-See WILLS (11-13).

ACCOUNTING-See ACTION; ESTATES OF DECEDENTS (2); EXECU-
TORS AND ADMINISTRATORS (1); PARTITION (2); WILLS (8).

ACTION.

While an employé who, in addition to a stated salary, is to
receive a certain percentage of the profits of the business as
compensation for his services, has a remedy in equity to se-
cure an accounting as to the profits, such remedy is not ex-
clusive, as a court of law has full power, under 2 How. Stat.
$7386, to appoint auditors to state the account. Stockman v.
Michell, 348.

See ARBITRATION AND AWARD; ASSUMPSIT; EQUITY JURISDIC-
TION; MORTGAGES (10-13); MUNICIPAL CORPORATIONS (4, 5);
MUTUAL BENEFIT ASSOCIATIONS (1).

ADJOURNMENT See JUSTICES OF THE PEACE (1–3).

ADMISSIONS-See EVIDENCE (3, 5, 8); FRAUDULENT CONVEY-
ANCES (4).

ADULTERY.

1. A justice of the peace may acquire jurisdiction for the pre-
liminary examination of a male respondent charged with
adultery, under a complaint and warrant which do not
allege that the complainant is the wife of the respondent;
and he is justified in acting upon an admission made by the
respondent's counsel, during the examination, that a marriage
ceremony had been performed. People v. Isham, 72.

2. A complaint against a woman for adultery need not show
that it is made by her husband; nor is it necessary that the
information should contain such an averment. People v.
Payment, 553.

3. Upon a prosecution for adultery, an instruction that sex-
ual intercourse must be proved is sufficient, without going
into particulars regarding penetration and emission. Id.

See HUSBAND AND WIFE; MARRIAGE.

701

ADVERSE POSSESSION.

1. Where, in an action to recover marsh land to which defendants claimed title by adverse possession, it appeared that defendants and their predecessors claimed to be the owners, and exercised acts of ownership by driving stakes to mark boundaries, by fishing, hunting, and trapping, by leasing to others, by erecting signs to warn off trespassers, and by building a dike around the land, a request to direct a verdict for plaintiff was properly refused. Chabert v. Russell, 571.

2. A tax deed which is insufficient in itself to pass title, and assessment rolls showing the assessment of the property in the name of the grantee, and proceedings of the probate court showing that the land was treated as a part of the estate of such grantee upon his decease, are admissible, upon an issue of adverse possession, to characterize the acts of possession, on the part of such grantee and his successors, shown by the evidence. Id.

3. Acts of possession, in order to constitute adverse possession, must be such as, if seen by the party whose claim is sought to be divested, would clearly apprise him that the party doing the acts claimed the ownership of the property. Id. ADVICE OF COUNSEL-See MALICIOUS PROSECUTION (1)

AFFIDAVIT-See GARNISHMENT (5).

AGENCY-See PRINCIPAL AND AGENT.

AGISTERS.

In an action for damages for failure to feed and properly
care for plaintiff's horses, evidence tending to show that they
were returned in bad condition by defendant, who had con-
tracted for their keeping, and that such condition was due
to want of proper care and food, casts on defendant the
burden of proving other cause, if there was any, for their
condition. Hynes v. Hickey, 188.

AMENDMENT-See CORPORATIONS (6); PLEADING (1, 5).
APPEAL AND ERROR.

1. An objection to the sufficiency of a declaration cannot be raised for the first time on appeal. Tyler v. Nelson, 37.

2. Cases will be reviewed and disposed of in the Supreme Court upon the points and theories presented in the court below. Rivard v. Rivard, 98.

3. A judgment will not be reversed for trivial errors in the admission of testimony which cannot in reason be presumed to have affected the result. Id. 99.

4. Assignments of error based upon rulings to which no exceptions were taken will not be considered. Banks v. Cramer, 168.

5. An objection to a question as "incompetent" is too general for consideration on appeal, unless the ground of the objection is apparent. Hynes v. Hickey, 188.

APPEAL AND ERROR-Continued.

6. The Supreme Court will hesitate to determine a case upon the ground of absence of proof of a given fact, where the question was not passed upon in the lower court, and it does not appear to have been there presented. Stockman v. Michell, 348.

7. Where a cause, upon being remanded by the Supreme Court, has been disposed of by the circuit judge in accordance with the opinion then rendered, a second appeal, based upon the same state of facts, and raising only the questions previously determined, is within 2 How. Stat. § 8982, authorizing an award of damages for a vexatious appeal. Wagar v. Bowley,

388.

8. Jurisdiction of a case brought by writ of error to the Supreme Court, and there affirmed, is restored to the trial court upon the filing of a remittitur from the appellate court. Reynolds v. Newaygo Circuit Judge, 403.

9. An objection that the probate court had no jurisdiction to admit a will to probate cannot be considered upon appeal, where the parties have stipulated that the will was duly probated." Defreese v. Lake, 416.

10. A judgment will not be reversed for error in the admission of testimony which was so limited in its purpose that it could not have prejudiced the appellant. Runnells Runnells v. Village of

Pentwater, 512.

11. An exception to the refusal of a motion to strike out testimony will not be considered, where the testimony was originally admitted without objection, and no reason for the motion was given. Id.

12. Errors assigned upon the refusal of requests to charge will not be considered where no exceptions to such refusal were taken in the lower court. Id.

13. Findings of fact by the trial court will not be disturbed on appeal where there is evidence to support them. Painter v. Ledyard, 568.

14. An assignment of error based upon the refusal of the court to give certain requests to charge is not available, where the requests appear to have been added to the bill of exceptions without authority, and are not certified to by the court. People v. Macard, 624.

15. The exclusion of cumulative testimony upon an undisputed point is not prejudicial. Miller v. Jurczyk, 637.

See CRIMINAL LAW (7); EXECUTION (2); INSANITY; JUDGMENT (1); JUSTICES OF THE PEACE (4, 6); MANDAMUS; PERSONAL INJURIES; RES JUDICATA; TRIAL (2, 15).

APPLICATION OF PAYMENTS—See PRINCIPAL AND AGENT (6, 8). ARBITRATION AND AWARD.

1. A contractor for the erection of a lighthouse sublet a portion of the work under a contract which provided that