LIBEL AND SLANDER-Continued. city marshal, with graft, was based on certain information secured by the reporter, no error was committed in excluding testimony of a member of the board of supervisors, which rejected plaintiff's bill, as to the opinions of the committee and board concerning the matter. Gripman v. Kitchel, 242. 2. The completeness of an alleged retraction, published by defendant under 3 Comp. Laws, § 10425 (5 How. Stat. [2d Ed.], § 13138), was a question for the court, in an action in which plaintiff claimed no punitive damages. Id. 3. Plaintiff was rightly relieved by the court from answering a question, on cross-examination, whether the retraction was full and complete; defendant's counsel might have been entitled, if he had desired, to show its effect on plaintiff's feelings, but the conclusion of the witness as to the legal effect of the retraction was incompetent. Id. See ARREST. LICENSE-See INTOXICATING LIQUORS (5); MUNICIPAL CORPORATIONS (3). LIENS. 1. Under a written contract made in consideration of complainant's releasing her dower and homestead rights in a farm to her son, whereby the son agreed to transfer to complainant one-third of all products of the farm during her lifetime and to permit her to procure fire wood therefrom and to occupy a part of the home, equity has jurisdiction to require an accounting, as to a subsequent grantee of the premises chargeable with notice, and to declare a lien on the premises, though no lien was, in terms, provided for by the instrument. Holden v. Butler, 116. 2. Complainant's possession and occupancy of a part of the 3. Defendant did not acquire a superior right by paying off LIFE INSURANCE-See INSURANCE (1). LIMITATION OF ACTIONS-See ADVERSE POSSESSION (2); BILLS LIMITATIONS, STATUTE OF-See BILLS AND NOTES (2). LOG-LIEN ACT-See GARNISHMENT (1); LOGS AND LOGGING (1). LOGS AND LOGGING. 1. Since statutory proceedings must be strictly followed, and a party making claims thereunder must prove that the court had jurisdiction, in garnishment proceedings, on a judgment rendered in attachment to enforce labor liens against timber products, it is necessary to make proof of the affidavit required by the statute as preliminary to the writ of attachment: a recital in the docket is not evidence that it was made. 3 Comp. Laws, § 10756, 5 How. Stat. (2d Ed.) § 13843. Keister v. Donovan 828. 2. By adjourning the case on his own motion at an adjourned day subsequent to the day of return, the justice of the peace lost jurisdiction of log-lien proceedings. Id. See MASTER AND SERVANT (7). LOST INSTRUMENTS-See EASEMENTS. MANDAMUS. The relator in mandamus may not question the correctness See APPEAL AND ERROR (11, 15); CREDITOR'S SUIT; SCHOOLS MANSLAUGHTER-See HOMICIDE (1, 5). MASTER AND SERVANT. 1. There was sufficient evidence of negligence to warrant submitting to the jury plaintiff's claim that the switching crew of defendant railway corporation was guilty of negligence in failing to give warning to the crew of a standing train that they were about to couple certain cars on the train, at a time when plaintiff in the performance of his duties as head brakeman was between the engine and one of the cars, although the coupling was carefully and properly made, and the plaintiff had not displayed a flag or signal to show his presence between the standing cars. Sonsmith v. Pere Marquette R. Co., 57. 2. Defendant's rule or bulletin requiring car repairers and other employés having occasion to work on, under, or about cars to display a flag which would protect the car from removal, coupling, etc., could not be said as matter of law to apply to a brakeman, who stepped between the locomotive and freight cars to shut off the air pressure from the engine to the rest of the train. Id. 3. Where plaintiff, who was injured by having his hand caught in a corn husking machine, placed his hand dangerously near to the machinery, for the purpose of cleaning out the space before the rollers thereof, knowing that it was dangerous to put his hand there, and having been instructed to use a stick for such purpose, his testimony that a person, who, defendant had informed him, would act as his instructor in working about the machine, repeatedly used his hands in a simi MASTER AND SERVANT-Continued. lar manner for the same purpose, tended to negative the claim of contributory negligence and warranted the court in submitting the point to the jury. Garfield v. Lapham, 217. 4. Where the evidence did not clearly disclose that the accident would not have been prevented if the machine had been properly guarded so as to protect the operator, and a proper device might have rendered it unnecessary to perform the work that plaintiff was doing when he was injured, the question whether the lack of a guard caused the injury was properly submitted to the jury. Id. 5. The court was not in error in charging the jury that it was for them to determine whether plaintiff kept the space before the rollers clear in the ordinary way, or whether he was unduly negligent. Id. 6. The general rule is that the relation of master and servant does not exist if the person employed is in the exercise of a distinct, independent employment, and not under the immediate control, direction, or supervision of the employer; it exists wherever the employer retains the right to direct the manner in which the business shall be done, as well as the result to be accomplished. McBride v. Jerry Madden Shingle Co., 248. 7. Plaintiff sent his team and driver to work for a contractor, who was lumbering for defendant company under an agreement creating the relation of independent contractor. After working for some time under the contractor's direction, the driver was ordered by him to haul logs out on the frozen surface of a lake, to strengthen the ice. Defendant's overseer, arriving at the lake, assisted the teamster to load poles, and made several tests to determine the strength of the ice, assuring the driver of its safety. Defendant paid his wages and paid for the use of the team, upon the order of the contractor, who had charge of the team and driver and controlled them. At the direction of the contractor the driver placed a load of poles further out than he had theretofore done, and the team broke through the ice and were drowned. Held, that the relation of master and servant did not exist between defendant and plaintiff's teamster. Id. 8. A wilful refusal or neglect by a servant to obey reasonable orders of his master constitutes a sufficient ground for termi. nating the contract of employment: and a refusal to obey his foreman, if the servant knew that he was subject to the foreman's orders, and the use of obscene and abusive language towards his superior, would justify his dismissal. Ernst v. Grand Rapids Engraving Co., 254. 9. Whether defendant had sufficient ground to discharge plaintiff, who denied using profane or improper language as claimed by defendant, and denied that he refused to obey any orders of his foreman, or that he knew the foreman had authority over him, was a question for the jury, upon conflicting testimony, in an action for breach of contract. Id. 10. Plaintiff was in the employ of a corporation with which de MASTER AND SERVANT-Continued. fendant company had contract relations for the manufacture and sale of motors, and was sent by his employer to defendant's factory to assist in the inspection and testing of goods that defendant was engaged under contract in manufacturing for his employer. While doing his work of testing a motor, he found it necessary or convenient to put his hand through the pulley, by means of which power was transmitted to the machine, and was injured by the unanticipated starting of the machine by a servant of defendant, with whom plaintiff was working, and who knew plaintiff was in a dangerous situation if the machine should start, but forgot the fact for an instant. Held, that the servant of defendant was not free from negligence, as matter of law, and was not plaintiff's fellow-servant. Johnson v. E. C. Clark Motor Co., 277. 11. Servants of separate masters, although engaged in a common undertaking, are not fellow-servants. To constitute that relation servants must be in the employ or under the control of a common master. Id. 12. One who, having no interest in the work, voluntarily assists the servant of another, cannot recover from the master because of injuries done by the servant, since he cannot obtain greater rights than a hired employé. Id. 278. 13. But such volunteer is to be distinguished from one assisting the servants of another for the purpose of expediting his own business or that of his master: if he is injured under such circumstances he is entitled to recover for negligence. Id. 14. The objection that plaintiff was guilty of contributory negligence because he selected a dangerous instead of a safer manner of doing his work was erroneously sustained by the trial court: the way was safe, if defendant's servant had not negligently started the motor, and plaintiff was not bound to anticipate his wrongful act. Id. 15. What was said and done by plaintiff and his fellow workmen immediately before and at the time of the injury was competent: also testimony relating to the practice in carrying on the work. Id. See CONSTITUTIONAL LAW (1, 6, 8); PARENT AND CHILD (2). MAXIMUM SENTENCE-See CRIMINAL LAW (1). MEASUREMENTS-See WATERS AND WATERCOURSES (1, 2). MECHANICS' LIENS. Complainant was not entitled to a mechanic's lien under a contract providing that defendant should pay a stipulated sum when the work should be performed and accepted, upon a showing that he abandoned the work before he completed the contract, that to complete it would cost $110, and that the actual cost of completion was $250, and that defendant never accepted complainant's work. Evans v. Woodley, 20. 178 MICH.-47. MISCONDUCT OF COUNSEL-See APPEAL AND ERROR (1). MISTAKE. Evidence tending to establish a mistake of defendants in executing a lease with option to purchase real property, examined, and held, insufficient to overcome the testimony of complainants that the option corresponded with the intent of the parties. Mentlikowski v. Wisniewski, 642. See WILLS (4). MITIGATION OF DAMAGES-See BREACH OF MARRIAGE PROMISE (1); Libel AND SLANDER (1). MORTGAGES. 1. Complainant's testimony that he executed an assignment of his half interest in a land contract on which default had been made, intending to secure advances of his cotenant, who gave testimony disputing that of complainant, held, insufficient to support the burden of proof. Dalton v. Mertz, 153. 2. In a suit to foreclose a mortgage, the husband, who claimed a homestead interest in the premises, occupied by the mortgagor and himself, was a proper party to the bill of complaint, although he did not join in executing either the mortgage or the collateral note; he was not entitled to try the questions involved before a jury on the law side of the court. People's Sav. Bank of Saginaw v. McKay, 236. See LIENS (3); PLEADING (3). MOTIONS. A special motion is one which is not a matter of course to See APPEAL AND ERROR (17); NEW TRIAL. MOTOR VEHICLES-See HIGHWAYS AND STREETS. MULTIFARIOUSNESS-See APPEAL AND ERROR (18). MUNICIPAL CORPORATIONS. Craw 1. Instructions to the jury that plaintiff, suing to recover under a city ordinance which rendered the city liable for half the cost of cement walks built by the city contractor, was entitled to recover as assignee of the property owners if the jury found that he had filed his bond as required by municipal regulation, and had been advised by one of the commissioners that the bond was good, although it was later rejected by the commissioners, and if the walk conformed to the requirements of the ordinance, held to be sufficiently favorable to defendant. Rice v. City of Pontiac, 41. |