ATTORNEY AND CLIENT-See WILLS (5, 6). AUTOMOBILES-See HIGHWAYS AND STREETS (1); NEGLIGENCE (5). BANKRUPTCY. 1. When a trustee in bankruptcy resorts to a State court to recover payments constituting a preference, as authorized by the bankruptcy law, the jurisdiction and practice are governed by the law of the State in which the suit is brought. Detroit Trust Co. v. Old National Bank of Grand Rapids, 61. 2. A bill by a trustee in bankruptcy will not lie to recover payments to defendant constituting a preference, where there is nothing to indicate that a judgment against defendant would not be good, and no ground of general equity jurisdiction is alleged, or necessity for equitable relief shown. Id. BAY CITY CHARTER-See MUNICIPAL CORPORATIONS (6, 7). BENEFICIAL ASSOCIATIONS-See INSURANCE (2, 3, 6). BILL OF EXCEPTIONS. 1. The provisions of the statute regarding the settlement of a bill of exceptions are to be construed in connection with the rules of the court in force at the time of its passage; and, section 10504, 3 Comp. Laws, which provides that a party appealing to the Supreme Court may incorporate into the bill of exceptions the record of all the proceedings had on a motion for a new trial, including the reason assigned for its denial, construed in connection with Cir. Ct. Rule 47, entitles an appellant to a reasonable time after the denial of such motion in which to settle a bill, where the application for such extension was made within four days after the denial of a motion for a new trial. Harper v. Wayne Circuit Judge, 543. 2. Laches will not be imputed to relator for a delay in bringing the motion for a new trial to be heard where it appears that such delay was occasioned by the absence of the trial judge. Id. 3. The failure to file a supersedeas bond, as provided by section 10355, 3 Comp. Laws, does not deprive the trial court of jurisdiction to grant an extension of time to settle a bill of exceptions; such bond being required only for a stay of proceedings. Id. See MANDAMUS (1, 3). BILL OF PARTICULARS-See PLEADING (5). BILL OF REVIVOR-See ABATEMENT AND REVIVAL (1). BILLS AND NOTES. 1. Where there was no fraud in the inception of a note, and plaintiff had no knowledge, actual or constructive, of any 155 MICH.-46. BILLS AND NOTES-Continued. fraud in connection with its indorsement and transfer, and received it in good faith, he was a "holder in due course" if he was a holder for value. Graham v. Smith, 65. 2. By sections 27 and 29 of the negotiable instruments law of 1905 (Act No. 265) the legislature changed the rule theretofore prevailing in this State so that now any person to whom a negotiable instrument has been pledged as collateral security for a pre-existing debt is a holder for value to the extent of the amount due him. Id. 3. Where, in an action against the guarantors of the payment of a promissory note, it conclusively appears that the agreement is contained in a letter from plaintiff to defendants stating their understanding of an oral agreement, and defendants' letter of guaranty, parol evidence is inadmissible to vary its terms. R. L. Polk Printing Co. v. Smedley, 242. 4. The question of whether a note of one of the parties had not been accepted in place of the note guaranteed by defendants, the evidence being in conflict, should have been submitted to the jury. Id. 5. In an action on a promissory note signed by defendants, copartners, and 18 others, where an indorsement upon the note acknowledging payment in full from the copartners, defendants, had been erased and materially changed, and plaintiffs' agent saw and carefully examined the note before purchasing, noticed the erasure and writing over it, and also the date of the note and indorsement. Held, that the testimony warranted the submission of the question of the good faith of the purchasers to the jury. Custard v. Hodges, 361. 6. In order to destroy the bona fides of the holder of commercial paper, circumstances which ought to excite the suspicion of a prudent, careful person are not sufficient, unless the circumstances or suspicions are so cogent and obvious that to remain passive would amount to bad faith. And under the facts above stated a case was made out by defendants which operated to shift the burden of showing good faith upon plaintiffs. Id. 7. The charge to the jury must be considered as a whole; and where, in such action, under the evidence above stated, a charge that if defendants were originally by agreement with the payee only to pay the amount claimed by them, and before delivery paid that amount, and the note had been indorsed showing that payment in full had been received from them, and that if this indorsement was later changed by one of the defendants without the other's knowledge, and the change was apparent, then plaintiffs could not recover, was warranted except as to the reference to "the other's knowledge," which was not prejudicial. Id. 362. See ASSIGNMENTS (2); CORPORATIONS (1, 2); FRAUDULENT BOARD OF ESTIMATES-See MUNICIPAL CORPORATIONS (8). BONDS See BILL OF EXCEPTIONS (3); BUILDING CONTRACTS; MUNICIPAL CORPORATIONS (5). BOOKS OF ACCOUNT-See EVIDENCE (9); WILLS (14, 16, 17). BOUNDARIES-See DEEDS (6). BROKERS. Where it was undisputed that plaintiff through his employé introduced a party to defendant who bought her real estate, and the only contest in the case was whether defendant herself, or through her husband acting as her agent, listed the property for sale with plaintiff, and the jury were properly in structed upon the issues in the case, it was error for the court, on the jury's announcing the improbability of their agreeing, to say before sending them out again: "A trial like this is costly to the county. If we fail to reach a result in cases of this nature, people lose faith in the ability of the courts to settle disputes. And the single question in this case, which should be solved readily, did the plaintiff by his subagent procure a customer for this property, and did they deal; and, if so, he is entitled to his commission. If not, not guilty, or for the defendant. It is the simplest case ever presented to a jury. Follow an officer." Ebert v. Wilcox, 69. BUILDING CONTRACTS. 1. Material alterations in a building agreed upon by the owner 2. The owner of a building erected under contract cannot recover BURDEN OF PROOF-See BILLS AND NOTES (6); WORK AND CAPIAS AD RESPONDENDUM-See ARREST CARRIERS. 1. A common carrier of passengers owes the duty of at least reasonable care in furnishing and maintaining cars in a safe condition, and an instruction is erroneous which makes a street-railroad company's liability to a passenger for injury from a defective car depend upon such a defective condition as in and of itself to "necessarily " apprise the company of its defective character. Plefka v. Detroit United Ry., 53. 2. In an action on the case for personal injuries, it appeared that plaintiff went from her home on a division of defendant's electric railway to a village on another division of the road; CARRIERS-Continued. that near the junction of the two, on the division to which she transferred, defendant's road crossed another railway which crossing was protected by a derailer; that plaintiff was unfamiliar with electric cars and had never been on the last-named division; that on her return in the evening, it being dark and rainy, when the car approached the said junction, the conductor announced the station and immediately left the car; that plaintiff started to alight, as others were doing, and the car suddenly started, throwing her to the ground; that the car, in fact, was stopped for the purpose of setting the derailer. Held, that the questions of defendant's negligence and plaintiff's contributory negligence were for the jury. Smith v. Detroit United Ry., 466. 3. In an action for negligently causing the death of plaintiff's son, there was evidence that the boy boarded a heavily loaded open car and took a position on the inside running board; that later other passengers were permitted to board the car, thereby crowding him into a position of danger; that, on passing another car going in the opposite direction on a parallel track, he was struck and instantly killed; and that the gong on the passing car was not sounded. Held, that the questions of defendant's negligence and the contributory negligence of plaintiff's decedent were properly submitted to the jury. Kalis v. Detroit United Ry., 485. 4. In such action, after the testimony was closed and before the arguments were begun, the trial judge stated that the only question he would submit to the jury was whether plaintiff's decedent was forced into the position which he occupied at the time of the accident by the crowding of passengers who came upon the car after he boarded it, or whether he voluntarily assumed such position. The arguments were based upon such theory. In the charge, after submitting this theory, the jury were instructed that it was a question for them to decide whether or not the failure to ring the bell of an approaching car, if they should find it was not rung, was an act of negligence. Held, that, in view of the statement made before the arguments, the instructions given were not consistent with the statement made to counsel. Id. 5. In an action for personal injuries occasioned by being ejected from defendant's car, it appeared that plaintiff tendered a ticket to the conductor for his transportation, which was refused on the ground that it was past the time of day when such tickets could be used. Held, there being a conflict of testimony as to the time of such tender, the question was for the jury. Scheer v. Detroit United Ry., 561. 6. Plaintiff, a boy about 13 years of age, boarded an open street car with his father, taking seats in the rear of the car. The father paid fares for both, and afterwards the boy changed his position to the forward end of the car. Upon the conductor asking him for his fare he stated that his father had paid it. He was asked to show where his father was, and started to go on the running board to where his father was seated, when he slipped and fell from the car, sustaining the CARRIERS-Continued. Held, that, as injuries complained of in his declaration. CERTIORARI. 1. The writ of certiorari is not favored and will be refused when 2. The writ of certiorari is a discretionary writ, and where, as in See JUSTICES OF THE PEACE (9). CHANCERY APPEAL-See APPEAL AND ERROR (2). CHANCERY PRACTICE-See DEFAULTS. CHARITIES-See GIFTS (2); WILLS (3, 4). CIRCUIT JUDGES-See VENUE (1). CIVIL-DAMAGE LAW-See INTOXICATING LIQUORS (5–10, 16-20, COLLATERAL ATTACK-See JUDGMENTS (2). COLOR OF TITLE-See ADVERSE POSSESSION (2). COMMERCE. An order for books signed in Detroit, not subject to counter- COMMISSIONS-See MASTER AND SERVANT (9). COMMON COUNTS-See ASSUMPSIT. CONCLUSIONS-See EVIDENCE (20). CONSIDERATION-See MASTER AND SERVANT (10). |