CONSTITUTIONAL LAW-Continued.

mer v. Board of Sup'rs of Bay Co., ante, 213. Robinson v. Westover, 225.

13. The act for the regulation of the manufacture and sale of intoxicating liquors is not in violation of the Constitution of 1850, art. 4, § 20, providing that no law shall embrace more than one object which shall be expressed in its title, in that it provides a civil remedy for the violation of the statute. Comp. Laws, §§ 5379-5446. Sisson v. Lampert, 509.

See MANDAMUS (7).

2

CONSTRUCTION BONDS-See MUNICIPAL CORPORATIONS (5); PRINCIPAL AND SURETY (5, 7).

CONSTRUCTION OF CONTRACT-See CONTRACTS (3).

CONSTRUCTION OF LEASE-See LANDLORD AND TENANT (7). CONSTRUCTION OF STATUTES-See CONSTITUTIONAL LAW (4,' 5); EMBEZZLEMENT (4); ESTATES OF DECEDENTS (4); RAILROADS; STATUTES.

CONSTRUCTIVE KNOWLEDGE-See MASTER AND SERVANT (8).
CONTRACTS.

1. A parol antenuptial agreement, valid because executed on the
one side and because of execution tendered on the other,
providing for a transfer of insurance to the wife in consider-
ation of a devise of realty may not be annulled by one of the
parties who was, at the time of the attempted annulment,
the husband and guardian of the other, the alleged reason for
the rescission being that the wife was incompetent to exe-
cute her part of the agreement. Andrews v. Lavery, 27.
2. A person who agrees with the contractor to manufacture and
furnish cement blocks for a public sewer, making the blocks
with machines furnished by the contractor, without under-
taking to perform any part of the original contract with the
city, is not a sub-contractor but a materialman, entitled to
recover on the bond of the contractor for the security of
laborers and materialmen. 3 Comp. Laws, § 10743. People,
for use of Kuenzel, v. National Construction Co., 133.

3. In a permit to cut timber, clauses conveying the right to cut
and remove the timber for fifteen years, for the use of the gran-
tee, from the lands of the grantor, and to have and “to hold the
same for the period aforesaid to the use and benefit" of the
grantee, the contract designating the parties as licensor and
licensee, constituted a license to cut and remove the timber,
title to which would pass after it should be cut and removed.
Scott v. Sullivan, 297.

4. Under a condition in such contract that a failure to pay certain taxes should operate as a surrender, cancellation or abandonment of all rights under the contract, and time should be of the essence of the agreement, a failure for three successive years to pay the taxes within the time limited terminates all rights under it as for a breach of a condition precedent. Id.

CONTRACTS-Continued.

5. A party who insists that no forfeiture has taken place may not
claim relief by amended pleadings, upon the inconsistent
theory that equity will relieve from a forfeiture upon the
tender of performance within the terms of the contract. Id.
6. No meritorious case warranting equitable relief from the for-
feiture of rights under the agreement is made by testimony
showing that the party in default forgot the time allowed to
him under his license, and delayed performance after notice
of his default, because it would be inconvenient to make the
required payments. Id.

7. A man of 58 years of age who, although affected by Bright's
disease, is able to comprehend the purpose of a transfer of
insurance from his wife to his daughter, and whose intention
appears rational, is properly held to have been competent
to execute the transfer. Andrews v. Lavery, 26.

See ATTACHMENT (2); CANCELLATION OF INSTRUMENTS; COR-
PORATIONS (2-4); DAMAGES (2); EVIDENCE (7); FRAUD (3);
FRAUDS, STATUTE OF; INSURANCE (8); LAND CONTRACTS;
LANDLORD AND TENANT (7); MUNICIPAL CORPORATIONS (1, 2);
PRINCIPAL AND SURETY (2); SALES (1–5,7, 11); SPECIFIC PER-
FORMANCE; USURY; WITNESSES.

CONTRIBUTION-See PARTNERSHIP (2).

-

CONTRIBUTORY NEGLIGENCE See DEATH BY WRONGFUL
ACT (2); MASTER AND SERVANT (13); Negligence (12); STREET
RAILWAYS (4, 5).

CONVEYANCES-See DEEDS (2, 3); WILLS (7).

CORPORATIONS.

1. In so far as it is necessary for a bill of complaint to aver an
attempt to procure a settlement from the company, it is suffi-
cient in showing that the corporation was substantially
owned by one man, that he had authority to act for the com-
pany and refused to pay the indebtedness to the complainant,
and that the latter was denied an examination of defendant's
books which had been removed from the State. Kimmerle v.
Dowagiac Gas Co., 34.

2. A surety is liable on its bond for the construction of a public
work where the contractor, a foreign corporation, which has
omitted to comply with the requirements of statute for the
carrying on of business within the State, fails to pay for ma-
terial furnished. Kuennan v. United States Fidelity & Guar-
anty Co., 123.

3. A foreign corporation engaged in business in Michigan is es-
topped to dispute the validity of its contracts for non-com-
pliance with the statute regulating the transaction of local
business. Act No. 34, Pub. Acts 1903. Id.

4. Such contracts are not void, but merely unenforceable by the
foreign corporation until it complies with the statute. Id.

5. Under statutes of Michigan separating the functions of tele-

CORPORATIONS-Continued.

graph and telephone companies and restricting the right of one company to engage in the two kinds of business, mandamus will not issue in favor of a foreign corporation to compel the secretary of State to issue a certificate of authority to transact both kinds of business in Michigan, although the corporation is authorized so to do in the State where it is organized. American Telephone & Telegraph Co. v. Secretary of State, 195.

6. Where complainants, who were minority stockholders in an
insolvent railroad company whose assets were sold by defend-
ants to a corporation in which they were principal stock-
holders, without observing the due formalities of law, and
without the consent of complainants, bring an action for an
accounting, and for damages based on the wrongful sale,
and, on the trial, it was shown that at the time of the trans-
fer the liabilities of the railroad company, which were as-
sumed by the purchaser as the consideration, largely exceeded
the assets, and the sale was made in good faith, and the result
would have been the same if the legal formalities had been
observed, a judgment for nominal damages only will be
affirmed. Thoman v. Mills, 402.

See ACCOUNTING; ACTION; FRAUD (2); INSOLVENCY; LIMITA-
TION OF ACTIONS; STREET RAILWAYS (1–3).

COSTS.

Costs are taxable in the Supreme Court against the persons beneficially interested as assignees of a cause of action by virtue of an assignment made prior to the commencement of the action, within the terms of 3 Comp. Laws, § 11281. Baumgarth v. Firemen's Fund Ins. Co., 207.

COUNTIES-See CONSTITUTIONAL LAW (9).

COURTS-See ACTION (3); ATTORNEY And Client (1, 2); CONSTI-
TUTIONAL LAW (1, 2, 7, 8, 11); MANDAMUS (6),
COVENANTS-See DEEDS (2, 3, 6-13).

CREDITORS' SUIT.

1. Neither a creditor's bill nor a bill in aid of execution is sustainable upon a judgment in attachment against a nonresident, wherein the jurisdiction of the court depended on the debtor's ownership of the land attached and where the bill of complaint avers that legal title thereto was taken in the name of a third person, for the convenience of the debtor. Bliss v. Tyler, 502.

2. A bill of complaint in which it is claimed that certain property of a nonresident debtor has been impounded by the creditor in attachment proceedings, cannot be sustained as a bill for impounding equitable assets based on the ground of continued absence from the State. Id.

CRIMINAL LAW.

1. The following charge in a prosecution for manslaughter is

CRIMINAL LAW-Continued.

*

open to the objection that it tends to inflame the minds of
the jury: "This awful deed was committed in the broad
light of day in the open streets of Ypsilanti, in bold and
wicked defiance of all human and divine law. * * So
far as we know, on this April morning life was as sweet and
precious to this poor wife and mother as it was to the pris-
oner. A more horrible or brutal death can scarcely be con-
ceived. It shocked the senses of the entire community.
There remains but little that you or I can do. We cannot re-
store life to this stricken woman; but we may do our share
towards the guarding and protecting of human life here-
after." People v. Poole, 350.

2. It is error to charge the jury that the defendant, who killed his
wife after being informed of her unlawful relations with
another man, might be found guilty of no higher crime than
manslaughter, if he was in a state of such excitement that
his reason was dethroned and he was driven along by an un-
controllable and irresistible impulse so that he was no longer
morally or legally responsible for his crime or what he was
doing or where he was, and had gone some distance from
this scene before he was able to recover himself and his
senses. Id.

3. A respondent is guilty of manslaughter for killing a person,
as distinguished from murder, if reason was at the time dis-
turbed by passion to an extent which might render ordinary
men of fair average disposition liable to act rashly or with-
out due deliberation, and from passion rather than judg
ment. Id.

4. A respondent on trial for murder may be cross-examined after
he has testified in his own behalf, as to any discrepancies
between his testimony and a prior statement made by the re-
spondent at the time of arraignment. Id.

5. The jury should be instructed, if so requested by respondent,
that to warrant a verdict of guilty the jurors must unani-
mously find that the accused committed the act as testified
to. People v. Nichols, 356.

6. The statement in the argument of the prosecuting attorney
upon his official oath that a certain witness testified truth-
fully, is a fatal error. People v. Treat, 77 Mich. 348 (43 N.
W. 963).

Id.

7. Facts of which the prosecuting attorney has personal knowl-
edge should be presented to the jury by him as a witness,
and not in his argument. People v. Williams, 518.

8. A respondent convicted of lewd and lascivious cohabitation
within 3 Comp. Laws, § 11693, providing for imprisonment in
the county jail for not more than one year, or a fine not ex-
ceeding $500, is not subject to 3 Comp. Laws, § 11785, impos-
ing an additional term of imprisonment in the State prison
for subsequent offenses in the case of persons duly sentenced
to one year or more therein. In re Bolden, 629.

9. A prisoner sentenced to two and one-half years in the State

CRIMINAL LAW-Continued.

prison under such statutes is entitled to release on habeas corpus. Id.

10. No formal adjournment is necessary on preliminary examination of a person charged with a crime, where the testimony was taken by a stenographer before the examining magistrate, and the decision of the justice to bind over the respondent announced orally, and after twelve days the witnesses were brought in, signed their testimony as extended, and the defendant was remanded into custody. Oblaser v. Wayne Circuit Judge, 665.

11. The court will take judicial notice of the fact that some time is required to reduce stenographic notes of testimony taken on preliminary examination to typewritten form. Id.

12. It does not preclude further action in the case for the justice to announce his decision to bind over the respondent under the testimony, at the close thereof, before it has been signed by the witnesses. Id.

13. The intention to make a valid order and to sign the testimony at the proper time will be presumed. Id.

14. The return of the examining magistrate, which is defective in not being properly verified, or in failing to contain the signed testimony and a proper affidavit, may be amended or a new return filed. Id.

See APPEAL AND ERROR (10); EMBEZZLEMENT (5-7); EVIDENCE (19, 20); INDICTMENT AND INFORMATION; INTOXICATING LIQUORS (1-3, 5–7); RAPE.

CROP, INTERESTS IN-See ESTOPPEL (1).

CROP RENTS-See ESTOPPEL (1); LANDLORD AND TENANT (1).
CROPS-See PARTITION.

CROSS-EXAMINATION-See CRIMINAL LAW (4); EVIDENCE (18, 25); TRIAL (5, 9, 10).

CUSTOMS AND USAGES-See NEGLIGENCE (8); SALES (18).
DAMAGES.

1. In an action for damages based upon a wrongful expulsion
from a train of the defendant, in which the declaration did
not put in issue the question of damages for the value of
plaintiff's ticket, testimony as to the amount paid for the
ticket is properly excluded. Pierson v. Illinois Cent. R. Co.,
110.

2. In replevin by the seller of a cash register under a contract reserving title, the defendant who waives a return of the property is entitled, not to the value of the property, but to only such damages as are shown to have resulted from the seizure, and in the absence of evidence of actual damages, a judgment for nominal damages should be rendered. National Cash Register Co. v. Richards, 129.