EVIDENCE-Continued.

say testimony of the teamster, was a notation made upon the freight bill by defendant's agent without an investigation, it cannot be said that the objectionable testimony does not constitute reversible error. Id.

10. In an action against the owner of an automobile for damages caused by a collision with a motorcycle on a public highway, where witnesses were permitted to testify as to what was said by the driver and the occupants of the automobile, a few minutes after the accident occurred, in the nature of admission of responsibility for the accident, where, independent of said testimony, plaintiff had sustained his theory of the case by a clear preponderance of the evidence, its admission, even if erroneous, held, not prejudicial. Link v. Fahey, 308.

11. Conclusions of a witness, even an expert, as to what an ordinarily prudent man would have seen are inadmissible. Schneider v. C. H. Little Co., 362.

12. In an action for personal injuries received by plaintiff by reason of the giving way of a floor on 'which defendant's agent had negligently piled a great quantity of plaster, testimony of plaintiff that the presence of the plaster on the floor did not cause him any thought of danger was admissible, it being a fact, and not a conclusion, bearing upon the contributory negligence of plaintiff, since, if there was danger which he fully appreciated, he might have been guilty of contributory negligence.

Id.

13. The third party not being present when the money in question was paid to defendant, and what occurred then and there being the crucial and vital question in the case, the court might have excluded his testimony as irrelevant and immaterial. Cutter v. Powers, 376.

14. An admission of counsel at the hearing that the title shown by an abstract was not marketable is not one which would bind the court, since the question is one of law. Bradway v. Miller, 648.

15. The recital in a sheriff's deed that a mortgage contains a
power of sale is no evidence of that fact. Id. 649.
See ADVERSE POSSESSION (3); APPEAL AND ERROR (1, 2, 7, 9,
23, 26); CONVERSION; CUSTOMS AND USAGES; DEPOSITIONS;
DIVORCE (2); EJECTMENT; EMINENT DOMAIN (2); ESTATES
OF LECEDENTS (5); FIRES; FRAUD (8, 10, 12, 13); FRAUDS,
STATUTE OF; HIGHWAYS AND STREETS (6); INDICTMENT AND
INFORMATION; MALICIOUS PROSECUTION (2, 4, 5); MASTER
AND SERVANT (8, 17, 22, 28, 36, 37); MUNICIPAL CORPORA-
TIONS (15); NEGLIGENCE; NEW TRIAL (3, 5, 7, 10); PRINCI-
PAL AND AGENT (1); REPLEVIN (2); SCHOOLS AND SCHOOL
DISTRICTS (1); SPECIFIC PERFORMANCE (1); STREET RAIL-
WAYS; TRIAL (1-8, 12, 14, 18); WITNESSES.

EXCEPTIONS—See MASTER AND SERVANT (42); NEW TRIAL (6).

EXCEPTIONS, BILL OF.

1. An order of the Supreme Court extending the return day of the writ of error, is no authority for the circuit judge to disregard the correct practice pursuant to section 62, chap. 18, of the judicature act (3 Comp. Laws 1915, § 12634), and Circuit Court Rule No. 66, in settling a bill of exceptions after expiration of the time limited in the statute. Yerkes v. Antrim Circuit Judge, 443.

2. Where the practice as prescribed in section 62, chap. 18, of the judicature act, and Circuit Court Rule No. 66, has not been followed, the circuit judge is without jurisdiction to settle a bill of exceptions, after expiration of the time limited in the statute, since he may exercise discretion only within the statutory limitations. Id. 444.

3. A motion to enter judgment non obstante veredicto, if treated as a motion for a new trial, must conform to the⚫ practice prescribed in the statute (section 62, chap. 18) and Circuit Court Rule No. 48, in order to entitle plaintiff to extension of time to settle a bill of exceptions. Id.

4. Because a writ of error may issue any time within one
year after the entry of judgment, it does not follow that
a bill of exceptions can likewise be settled as a matter of
right within that time, unless the statute and rules pro-
viding for extending the time for settling such bill shall
have been complied with. 3 Comp. Laws 1915, § 12634;
Circuit Court Rule No. 66. Id.

EXCESSIVE PENALTY-See MUNICIPAL CORPORATIONS (3).
EXCHANGE OF PROPERTY-See SPECIFIC PERFORMANCE (2).
EXECUTION.

1. Mandamus will not lie to compel a circuit judge to grant
a stay of execution issued on a judgment rendered on
November 2d, where the bond was not filed till December
5th following; section 23, chap. 22, of the judicature act
(Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 12812),
requiring such bond to be filed within 20 days after the
judgment is rendered. Hatch V. Washtenaw Circuit
Judge, 1.

2. On appeal from a decree dismissing a bill by a wife to restrain the sheriff from selling an automobile levied on by a judgment creditor of the husband, where the ownership of the automobile is in dispute, plaintiff claiming that in its purchase the husband acted as her agent, and the conclusions that the automobile is necessary for her use in selling her farm products, and that the identical automobile is the only thing that will satisfy her just demands not being apparent from the bill of complaint or that her remedy at law is inadequate, the sheriff not being officially insolvent, the decree of the court below will be modified to the extent of dismissing the bill without prejudice to plaintiff's right to institute a suit at law. Allen v. Heft, 594.

EXECUTORS AND ADMINISTRATORS.

1. The presumption that services rendered to a mother by a
daughter are gratuitous is nct of itself destroyed by the
fact that they were not members of the same household,
yet this fact weakens the presumption, and it may be re-
garded as giving support to other facts tending to estab-
lish an implied contract. In re Hoffman's Estate, 464.
2. Evidence that plaintiff, a married woman living in her
own home in the same city as her father and mother, in
response to her mother's request, gave up her own home
to care for her mother, who promised her, in her father's
presence, that she should never regret it, presented a
question for the jury as to whether there was an implied
promise to pay for the services so rendered. Id.

3. On a bill by the administrator and the heirs of a deceased
insane person against the wife and children of a former
guardian, to enable the administrator to marshal the
assets of the estate, which involves an intricate and com-
plex accounting covering a long period of years, and there
is no proceeding in which the administrator can obtain
the relief sought other than by an equity proceeding, the
court of equity has jurisdiction. Elwell v. Pierce, 479.
4. On cross-appeals from an order sustaining demurrers to
the bill and cross-bills, in view of the complexity of the
questions raised, and of the fact that from the pleadings
it is impossible for the appellate court to decide them, the
demurrers will be overruled and the case remanded to
the court below for hearing upon the merits upon proper
pleadings. Id.

See ESTATES OF DECEDENTS (5); INDICTMENT AND INFORMA-
TION; SUBROGATION (2).

EXEMPTIONS-See TAXATION (3).

EXPERT TESTIMONY-See EVIDENCE (11).

EXPERT WITNESSES-See FIRES (2).

EXTENSION OF EXISTING SEWER-See MUNICIPAL CORPORATIONS (11).

EXTENSION OF TIME-See EXCEPTIONS, BILL OF; VENDOR AND PURCHASER (1).

EXTINGUISHMENT-See MASTER AND SERVANT (6).

EXTREME CRUELTY-See DIVORCE (2).

FACT-See EVIDENCE (6).

FAILURE OF VENDOR'S TITLE-See VENDOR AND PURCHASER (2).

FEDERAL CONSTITUTION-See CONSTITUTIONAL LAW (3).

FEDERAL EMPLOYERS' LIABILITY ACT-See INTERSTATE COMMERCE; MASTER AND SERVANT (1, 47).

FEE-See HIGHWAYS AND STREETS (3).

FEES-See CONTRACTS (5).

FELONY-See AUTOMOBILES (1).

FICTITIOUS NAMES-See APPEAL AND ERROR (8); NAMES.

FINANCIAL CONDITION-See TRIAL (4).

FINDING OF COURT-See FRAUD (10); SUBROGATION (1).

FINDING OF JURY-See PRINCIPAL AND AGENT (2).

FINDINGS OF INDUSTRIAL ACCIDENT BOARD-See MASTER AND SERVANT (8, 16, 17, 29, 36).

FIRES.

1. In an action against a railroad company for setting fire to
plaintiff's premises by escaping sparks from a locomotive,
where the declaration alleged that defendant's track ran
so near plaintiff's property that it was possible for sparks
to be carried from the engine, properly stating a cause of
action, testimony tending to support the inference of im-
proper equipment and operation, from the circumstance
of the great distance it was assumed the spark was thrown,
was not inadmissible on the ground of variance; the proof
offered should have occasioned no surprise to defendant.
Budd v. Ann Arbor R. Co., 250.

2. In such action, testimony of two witnesses, formerly loco-
motive engineers, although neither had operated an engine
for many years, that a properly equipped engine could
not throw sparks the distance traveled in the case at
bar, was admissible, its weight being for the jury. Id.
3. Testimony of witnesses that, while working upon a barn,
they had noticed live sparks fall upon the roof, carried
a distance of from 150 to 200 feet farther from the track
than the barn that was burned, was admissible for the
purpose of showing that it was physically possible for
sparks to be carried that distance through the air, but
not for the purpose of showing that defendant's engines
generally caused fires at other times and places. Id. 251.
See TRIAL (14).

FIRM NAME-See APPEAL AND ERROr (8).

FITNESS-See FOOD (1).

FIXTURES-See REPLEVIN (1).

FOOD.

1. There is no implied warranty of fitness or quality in the sale of articles of food, between dealers, where the buyer has an opportunity to inspect the articles before delivery. E. P. Stacy & Sons v. Moher, 81.

FOOD-Continued.

2. Where defendant, a retail grocer, purchased of a whole-
sale dealer a quantity of eggs for future delivery, under
written contract, accepting the stock in the condition it
was in when it went into cold storage, in an action for
the purchase price, the court properly instructed the jury
that if, when the goods went into cold storage, they were
fit for food and they afterwards deteriorated and became
unfit for food, the loss would be on defendant, there being
no claim of fraud or misunderstanding in making the
contract. Id.

3. Where the eggs were sound when defendant purchased
them, and they decomposed after being placed in cold
storage, section 6473, 2 Comp. Laws 1915, making it a
misdemeanor to have in one's possession, with intent to
sell, any article of food which is diseased, decomposed,
etc., is no defense to an action for the purchase price.
Id. 82.

FORCIBLE ENTRY AND DETAINER.

A landlord who obtained entry by means of fraud, and was
followed by officers, who, by false representations as to
the writ of restitution, and with a display of force calcu-
lated to intimidate and terrify, but without actual vio-
lence, took plaintiff's goods from the premises, was liable
for damages for forcible entry under section 13229, 3
Comp. Laws 1915, although the tenancy had been termi-
nated by proper notice. Gallant v. Miles, 532.

FORECLOSURE-See EVIDENCE (15); MORTGAGES; REPLEVIN (1,
2); VENDOR AND PURCHASER (6).

FORFEITURE-See VENDOR AND PURCHASER (1, 2).
FRANCHISES-See HIGHWAYS AND STREETS (5, 8).

FRAUD.

1. A vendee who has been defrauded in the purchase of land
and desires to rescind, must act promptly and place the
vendor in statu quo, or offer to do so. Cox v. Holkeboer,
86.

2. Where plaintiffs, claiming fraud in the sale of land to
them on contract, moved off the premises, informing de-
fendant why they had done so, offering to surrender the
premises and contract, and demanding a return of the
money paid, clearly indicating their intention to rescind,
they did all they were required to do as a condition prece-
dent to bringing suit; the contract being unrecorded no
reconveyance was necessary. Id.

3. If further acts upon the part of plaintiffs had been neces-
sary, in order to restore the status quo, defendant was in
no position to insist upon them, after refusing to acqui-
esce in the rescission and informing plaintiffs that "he
would fight them to the last ditch." Id.