1. Respondents charged with adultery are entitled to re-
quest an election as to the date of the offense relied upon,
so as to enable them to meet the charge, although the in-
formation need not specify the exact date. A statement
of the prosecuting attorney that he would show respond-
ents committed the offense between the 28th of April and
the middle of May, 1912, was an insufficient election.
People v. Davis, 594.
2. Proof of acts of intimacy prior to the date charged is
competent, but evidence of subsequent conduct is not ad-
missible. Id. 595.
3. Where the prosecution introduced in evidence the record
of a marriage between the complaining witness and one
respondent charged with adultery, and during the trial
the attorney for respondents objected to the testimony
of the alleged husband as privileged, there was a sufficient
showing that the complaint was properly made under
3 Comp. Laws, § 11690 (5 How. Stat. [2d Ed.] § 14775),
by the husband. Id.
ADVERTISING OLEOMARGARINE-See CONSTITUTIONAL LAW
(1); CRIMINAL LAW (1).
AFFIDAVITS-See ARREST; NEW TRIAL (1).
AGENCY-See PRINCIPAL AND AGENT.
ALIMONY-See DIVORCE (1).
ALTERATION OF INSTRUMENTS-See WILLS (7).
AMENDMENTS.
1. No formal written amendment of plaintiff's declaration is
required, on request for a correction at the trial. Bosek
v. Detroit United Ry., 8.
2. The amendment of a declaration in a personal injury
action that averred injury to plaintiff's head, so as to admit
testimony establishing a fracture of plaintiff's skull, was
a proper exercise of the court's discretion. Id.
3. In permitting plaintiff to amend his declaration as to the
side on which he was injured, the court exercised a proper
discretion. Davis v. Buss Machine Works, 61.
See APPEAL AND ERROR (1); CARRIERS (12).
1. Where counsel's exception to a ruling of the court left it
in doubt whether the exception covered the court's re-
fusal to strike out testimony as to damages, or its ruling
on a proposed amendment to the declaration, the verdict
being small in amount, prejudicial error was not shown
for refusing to eliminate the testimony which also might
APPEAL AND ERROR-Continued.
have been admissible under an allowable amendment denied by the trial court. Davis v. Buss Machine Works, 61. 2. Proper exceptions as well as a request for a ruling of the trial court are essential to review argument of counsel for the prevailing party on writ of error. Pettinger v. Alpena Cedar Co., 162.
3. The denial of a motion for new trial is not reviewable
unless the reasons for such ruling are demanded or se-
cured in the lower court. Id.
4. An assignment of error based on the theory that in-
terest should not have been allowed from the date of loss
but from sixty days thereafter, is not reviewable on appeal
if the point was not brought to the attention of the lower
court. Dahrooge v. Sovereign Fire Assurance Co., 249.
5. On appeal by complainants from an adverse decree in a
suit to quiet title, the Supreme Court will not pass on
the constitutionality of a statute and dismiss the bill at
complainants' request, if the point was not presented or
passed upon by the trial court. Walker v. Schultz, 280.
6. To review a ruling of the trial court excluding an answer
an exception is essential. Le Fleur v. Michigan Alkali Co.,
404.
7. If no bill of exceptions is settled or required on error to
the circuit court, it is not necessary to obtain any certifi-
cation of the record aside from the certificate of the
clerk, signed and sealed, that the copies of the record
returned are true copies and his indorsement on the writ
of error under seal showing the execution of the writ;
and the printed record although faulty is sufficient with-
out any certificate of the judge or clerk, and may be pre-
pared and printed without giving the appellee an oppor-
tunity to offer corrections or suggestions. Scott v. Brown,
447.
8. The return of the justice in certiorari to the circuit court must be taken as true and conclusive as to material facts stated. Id.
9. A mere statement of the trial court that he did not consider a witness competent as an expert on value, not passing on any particular question or ruling out testimony offered, was not error of a reversible character, since it did not affect any right of defendant. Leder v. National Union Fire Ins. Co., 470.
10. Assignments of error not based on any exception or relating to motions to strike out testimony, the grounds or reasons for which were not mentioned on the trial, present no reviewable questions. Id.
11. Exceptions duly taken are essential to the review, on error, of questions raised on the trial and on motion for
APPEAL AND ERROR-Continued.
a new trial pursuant to 3 Comp. Laws, $10504 (5 How.
Stat. [2d Ed.] § 12965). Hotchkiss v. Weinmann-Matthews
Co., 652.
See INSURANCE (3); MECHANICS' LIENS (3); TAXATION (1,
5); TRIAL (1-3, 6).
APPEARANCE-See JUSTICES OF THE PEACE.
ARGUMENT OF COUNSEL-See NEW TRIAL (5); TRIAL (9).
ARREST.
1. Before the writ of capias will be allowed and a party
held to bail, the plaintiff must comply strictly with the
requirements of the statute. Soule v. Ottawa Circuit
Judge, 127.
2. It was insufficient to present an affidavit of the plaintiff
setting up in detail the mailing and receipt of certain
libelous letters addressed to residents of the county in
which plaintiff was a candidate for office, where the affi-
davit did not aver that plaintiff had ever seen the letters
or that he was present and saw them received or mailed.
Id.
ASSAULT-See CRIMINAL LAW (2).
ASSIGNMENTS-See CARRIERS (8, 9); INSURANCE (2); MORT-
GAGES (3).
ASSUMPTION OF RISK-See CONSTITUTIONAL LAW (7); MASTER
AND SERVANT (10, 12, 24).
ATTORNEY AND CLIENT-See INSURANCE (2).
ATTORNEY GENERAL-See WATERS AND WATERCOURSES (7).
AUTOMATIC GATES-See LANDLORD AND TENANT; NEGLIGENCE.
AUTOMOBILES.
1. Since subdivision 3 of § 10 of Act No. 318, Pub. Acts 1909
(2 How. Stat. [2d Ed.] § 2496), is unconstitutional in so
far as it creates a liability of the proprietor of an auto-
mobile for negligent acts of persons in control of the car,
unless it was stolen (Daugherty v. Thomas, 174 Mich. 371
[140 N. W. 615]), a judgment for defendant upon a di-
rected verdict in an action for injuries caused by an auto-
mobile in charge of the daughter of one of defendant's
officers is affirmed without deciding the questions presented
on appellant's behalf. Mitchell v. Van Keulen & Win-
chester Lumber Co., 75.
2. Testimony that defendant drove his automobile at an ex-
cessive rate of speed when he struck plaintiff, that he
failed to give warning, that he saw plaintiff ahead of him
crossing the highway between two rigs with his back
to defendant, apparently hesitating as if confused, that
one of the standing horses was restless and excited, that he could have stopped his car instantly, but turning to avoid plaintiff drove between the vehicles and struck and injured plaintiff while driving at a speed of five miles an hour or upwards, according to differing testimony of witnesses for both parties, presented a question for the jury as to defendant's negligence. Schock v. Cooling, 314. 3. It was negligence for the driver of an automobile, having ample space in which to pass a pedestrian on the highway, to so guide the car as to strike him. Id.
4. Plaintiff's negligence, which defendant claimed was the proximate cause of the injury, was for the jury. Id.
5. It was not error to admit testimony that other automo-
biles, prior to the time of plaintiff's injury on the evening
in question, had lighted lamps, in support of plaintiff's con-
tention that defendant was running without lights more
than an hour after sunset; the purpose of the testimony
being properly restricted by the judge in his charge and
the jury being advised that it was not to afford a test
of the duty of the defendant. Id.
See CONSTITUTIONAL LAW (3); DAMAGES (1); MASTER AND
SERVANT (17).
BANKRUPTCY-See CONTRACTS (5).
BANKS AND BANKING-See CARRIERS (8, 10).
BENEFICIAL ASSOCIATIONS-See INSURANCE (4-6); SPECIFIC PERFORMANCE (1); TRIAL (4).
BILL OF COMPLAINT-See TAXATION (1).
BILL OF LADING-See CARRIERS (1, 8, 10); CONTRACTS (6); EviDENCE (4, 6).
BILL OF REVIEW-See TAXATION (1).
BLOWING WHISTLE-See RAILROADS (1).
BONA FIDE PURCHASER-See DEEDS (1); VENDOR AND PURCHASER (4).
BREACH OF CONTRACT-See MASTER AND SERVANT (3); SPECIFIC PERFORMANCE (3).
1. Under terms of a broker's contract to secure tenants for real property for $500 and 10 per cent. of the net rentals, the phrase "net rentals" included the entire sum received for rent of the property less expense of maintenance, plaintiffs conceding that taxes and insurance should be first deducted. Kinsey v. Dickinson, 1.
2. Defendant was not entitled to deduct the cost of certain
partitions and improvements to the building and premises
required to make the same fit for the purposes of the
tenant, although such cost was added to the annual
rent in sums sufficient to reimburse the landlord for the
outlay. Id.
3. In assumpsit by a broker for commissions on the sale of
real property that he knew was in the hands of other
agents at the time he showed the same to a prospective
buyer, who closed the deal through the other firm on
terms lower than plaintiff was authorized to propose, the
burden of showing that his services were the efficient pro-
curing cause, rests upon plaintiff, and evidence that he
merely brought the real estate to the purchaser's atten-
tion is insufficient. Byers v. Williams, 385.
See ACCOUNT STATED (2); FRAUD (13).
BULK SALES LAW-See EXEMPTIONS.
BURDEN OF PROOF-See HUSBAND AND WIFE (1); LIENS.
BY-LAWS-See INSURANCE (4-6).
CAPIAS AD RESPONDENDUM-See ARREST.
1. In an action commenced by a granite quarrying company
for damages in transit to a consignment of stone which
defendant billed under a special and reduced rate upon
plaintiff's representation, as shown in the receipt, that
the stone was building granite and that the parties agreed
upon a valuation in case of loss of 20 cents per cubic
foot, although the material was intended for the con-
struction of a mausoleum and was highly polished and
more valuable than building stone; it appearing also that
plaintiff acknowledged by the terms of the bill of lading
that a higher rate was open to it without any restrictions
as to valuation, the damages were correctly limited by the
charge of the court to the valuation of 20 cents per cubic
foot, as fixed in the contract of shipment. Harrison
Granite Co. v. Grand Trunk Ry. System, 144.
2. The shipper is estopped from recovering more than the
agreed valuation in case the parties voluntarily contract
as to the relative rate of transportation and value of the
property; and except in cases of gross negligence on the
part of the carrier the limitation of liability is effectual
and valid. Id.
3. Such limitation as to value has not such a tendency to
exempt the carrier from liability for negligence as to bring
the contract within the rule forbidding contracts of that
class. Id.
4. By the enactment of 34 U. S. Stat. 593 (U. S. Comp. Stat.
Supp. 1911, p. 1307), Congress has assumed control of the
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