DAMNUM ABSQUE INJURIA-See HIGHWAYS AND STREETS (1). DEATH.

Deceased, an assistant lighthouse keeper, earning $450 a year, but in the line of promotion under the civil service rules, was killed through defendant's negligence. Prior to the accident he was strong and healthy, mentally and physically, and had a life expectancy of 35.33 years. He left a wife 31 years of age, and a child of 7 months, at the time the suit was brought. Held, that a verdict assessing the pecuniary loss of the widow and child at $8,000 was excessive, and should be reduced to $5,000. King v. Ann Arbor R. Co., 65. See PHYSICIANS AND SURGEONS.

DEEDS.

1. A husband executed a deed of certain property to his wife and left it with the scrivener to be delivered in case of his death. Subsequently, when both were ill, she importuned him for a deed of the property, whereupon he told a third person the matter had been attended to and authorized him to get the deed, which he did. On being asked whether the deed should be read to his wife the husband made no reply. The wife, when asked whether she would take the deed or let the third person keep it, told him to keep it, and the husband said, 'Keep it, and when we are well we will go down to your office and attend to it together." A few days later the wife died, but the husband recovered and always treated the property as his own. Held, that there was no delivery of the deed. Connor v. Rivard, 177.

2. A deed which conveys land to two grantees, "and the survivor of them, and to their heirs and assigns forever," conveys a moiety to each for life, with remainder to the survivor in fee, and neither of them, by conveyance during his lifetime, can create a tenancy in common, so as to cut off the contingent remainder. Finch v. Haynes, 352.

3. Where a landowner executes deeds and deposits them with another with instructions to deliver them after his death, he has a right to recall them and destroy them, unless at the time of depositing them he intended to deprive himself of that right. Cole v. Cole, 676.

4. It being sufficient in such a case that it is understood both by
the grantor and the depositary that the grantor reserves the
right to control the deeds, an express agreement to that effect
is unnecessary, and it appearing that there was such an un-
derstanding, no title passes, and the grantor has a right to re-
call and destroy the deeds. Id.

See CANCELLATION OF INSTRUMENTS (1); MORTGAGES (4, 6);
WITNESSES (7).

DEMURRER-See EQUITY (1, 9).

DISMISSAL AND NONSUIT-See APPEAL AND ERROR (13).

144 MICH.-46.

DIVORCE.

1. On a bill for divorce, evidence examined, and held, not to support a decree on the ground that defendant's penuriousness made life with him unbearable. Branch v. Branch, 167. 2. Where, after granting a decree for divorce without provision for alimony, and without reserving that question, the court modifies its decree so as to make a money allowance to the wife, the whole question of alimony or allowance is then open under section 8641, 3 Comp. Laws, though the modification of the decree was unauthorized had the proper objection been made. Cole v. Cole, 346.

3. Where, since the last hearing on the question of an allowance to a divorced wife, the husband's second wife has died, and the divorced wife has developed a serious physical ailment incapacitating her to labor, there is a sufficient change of circumstances to justify a further allowance. Id.

4. Where a wife is granted a divorce for her husband's fault, an award of alimony that gives her a less interest in their joint property than she possesses at the date of the decree is wrong. Brown v. Brown, 654.

See JUDGMENT (8); MARRIAGE.

DOMICILE-See JUDGMENT (3).
DRAINS-See JUDGES.

EJECTMENT.

Where plaintiff in ejectment shows a title perfect on the record, such title cannot be attacked by evidence that the deed under which he holds was executed in fraud of the grantor's creditors. Bliss v. Slater, 648.

See BOUNDARIES (1); INJUNCTION (1).

ELECTIONS.

1. A recount of votes can be had, under 1 Comp. Laws, § 3725, only in cases when the recount board can find, from an inspection of the ballot box, that the statutory requirements for the preservation of the ballots as cast have been observed. Keith v. Wendt, 49.

2. Under the charter of Marquette, which provides that upon the Thursday next following election the common council shall meet and determine who are elected to the several city offices, the common council is a canvassing board within the meaning of section 3725, 1 Comp. Laws, providing for recounts by canvassing boards. Ward v. Culver, 57.

3. A petition for a recount of the votes cast for mayor of a city, which shows that petitioner and his opponent received 1001 and 1008 votes, respectively, is sufficient, though it asserts no errors in the count of votes within the knowledge of the petitioner. Id.

4. An answer by a canvassing board to an order to show cause why they should not proceed to recount the votes of certain

ELECTIONS-Continued.

wards for an office is insufficient, where it makes no mention of one of the wards specified, and as to another fails to clearly state that the ballot boxes have not been sealed as the law requires. Id.

5. Section 3725, 1 Comp. Laws, providing for recounts by boards of canvassers is not unconstitutional as applied to city offices because it cannot be carried into execution unless by common consent, since the members of the common council of a city, constituting the board of canvassers, are officers of the city, bound by their oath of office, and while there is no express requirement that the inspectors in the various wards having the keys and election seals shall attend the board of canvassers, it is their duty to do so upon notice, and it is not probable that examiners selected by rival candidates will refuse to serve. Id.

6. Where a committee of the common council of a city has recounted the ballots cast for a city office, as provided by section 3725, 1 Comp. Laws, and presented majority and minority reports, the council have no power to accept other than the majority report. Ward v. Culver, 71.

7. Section 2 of chapter 3 of the primary election law of 1905 (Act No. 181), providing that petitions for the submission of the question shall be filed at least 30 days before the second Tuesday in June, is mandatory, and the secretary of State prop. erly refuses to consider petitions not filed in time under such section. Cramton v. Secretary of State, 341.

See TOWNSHIPS (1).

ELECTRICITY-See CARRIERS (6, 7).

EMINENT DOMAIN-See VENUE (1).

EQUITY.

1. When defendants in a chancery suit have answered and inserted in their answer the usual demurrer clause denying that plaintiff is entitled to any part of the relief demanded, etc., and replications have been filed, the case must go to a hearing on the issues joined, and to final decree; it being im proper for the court to determine the legal questions so raised prior to the hearing on the proofs. Gray v. Eldred, 23.

2. Equity may entertain a bill to enjoin a suit already begun on a life-insurance policy and cancel the policy though the grounds alleged may be urged in defense of the suit at law. Fidelity Mut. Life-Ins. Co. v. Blain, 218.

3. On a bill for the specific performance of a contract to convey land the verdict of a jury is merely advisory. Detroit United Railway v. Smith, 235.

4. Chancery has jurisdiction to set aside a judgment and execution for less than $100 where the execution has been levied and constitutes a lien on land of much greater value. Wilcke v. Duross, 243.

EQUITY-Continued.

5. Complainant in a bill to set aside a judgment will be allowed
only actual disbursements, where she had actual knowledge
of the mistake in serving process which invalidated the judg-
ment, and though she did not appear, was kept fully advised
of the progress of the case, and made no objection until a
transcript had been filed in circuit court and levy made on
her real estate. Id. 244.

6. A bill, the main purpose of which is to set aside chancery de-
crees under which complainant's lands were sold for taxes,
but which does not state a case for relief on either of the
grounds provided by section 70 of the general tax law, is sub-
ject to a motion to strike from the files. Carpenter v. Audi-
tor General, 251.

7. Where some of the defendants have answered a bill and others
have been defaulted, the striking of the bill from the files on
motion of another defendant in his own behalf does not affect
the defendants who had answered, or who had been defaulted,
and the suit remains in the trial court for such action as it
may deem proper. Id.

8. Under Chancery Rule 10d, failure of defendant, in a suit to en-
force a mechanics' lien, to answer an allegation of the bill
that personal service of the lien statement was not made upon
him because of his absence from the county, admits the truth
of such allegation and obviates the necessity of proving it.
J. E. Greilick Co. v. Rogers, 313.

9. Where a supplemental bill filed by order of the court admits
that no new evidence has been discovered, and the former
pleadings and the testimony taken on the former hearing are
made a part of the bill, a demurrer to the supplemental bill
raises the question whether the whole record presents a case
prima facie entitling complainant to relief. Čheever v. Ellis,
477.

See ASSIGNMENTS FOR BENEFIT OF CREDITORS (1-3); COURTS
(1); EXECUTORS AND ADMINISTRATORS (7-11); SPECIFIC PER-
FORMANCE (1); TAXATION (5); VENDOR AND PURCHASER
(2, 3); WILLS (6).

ESTOPPEL-See EXECUTORS AND ADMINISTRATORS (11, 12, 16);
TRUSTS (2); WILLS (6).

EVIDENCE.

1. In an action by a boy against a street-railroad company for
personal injuries arising from his being ejected from a car as
an intruder, it is error to refuse to instruct that the prepon
derance of evidence is upon plaintiff. Miller v. Detroit
United Railway, 1.

2. Persons living near a railway track who can tell when trains
are going at a high rate of speed, and when they are going at
a slow rate, and who have observed trains to see about how
fast they run, are competent to give an opinion on the sub-
ject of the rate of speed of a particular train. Garran v.
Michigan Cent. R. Co., 26.

EVIDENCE-Continued.

3. The admission of incompetent evidence, afterward stricken out and disregarded, is immaterial in a case tried without a jury. Smith v. Smith, 139.

4. The opinion of a surveyor as to a supposed monument found by him while surveying a particular tract is a mere conclusion and is not admissible. Clarke v. Case, 148.

5. Where, in a personal injury case, there is testimony tending to show that plaintiff, though she had been ill before the accident, had fully recovered, a hypothetical question, put to a physician, which assumes that she was in good health, is not objectionable as not based on the evidence, though that fact is disputed. Herbeck v. Germain, 157.

6. The court will take notice that the small streams of the State grow less year by year. Andrews v. Weckerman, 199.

7. Evidence that property was placed in the possession of plaintiff's agent for sale is sufficient to show that the possession continued at the time it was taken by defendant; the condition, once shown to exist, being presumed to continue until the contrary is proved. Sanford v. Millikin, 311.

8. Testimony explaining the failure to call a witness at a former trial of the case is admissible. McDonald v. City Electric R. Co., 379.

9. A physician may state to what extent in his opinion the injury to plaintiff's feet complained of has reduced his physical ability to perform manual labor. Id.

10. Plaintiff, suing for an injury to his foot, may state that he cannot use it; that he follows the statement by a full description of the injury, showing conclusively that he can use the foot, affects only the credibility and not the admissibility of his conclusion. Id. 380.

11. Where, in garnishment proceedings, the defense is that the garnishee defendants did not purchase certain goods from the principal defendants, but from a third person, to whom the principal defendants had sold them, the admission in evidence of testimony concerning a sale of other goods by the principal defendants to other persons, of which the garnishee defendants had no knowledge, and which is claimed to have been fraudulent, is prejudicial. Seitz v. Starks, 448. See CRIMINAL LAW (4-8, 15-17, 19); FRAUDULENT CONVEYANCES (5, 6); GARNISHMENT (2); HOMICIDE (1); LIBEL AND SLANDER (7); MASTER AND SERVANT (2); MORTGAGES (4-6); NEGLIGENCE (7); RAILROADS (4); REPLEVIN (2);` SALES (12); SEDUCTION (5); TRIAL (2, 5).

EXAMINATION-See CRIMINAL LAW (2).

EXAMINATION OF WITNESSES-See EVIDENCE (5); WITNESSES (2, 3).

EXECUTION.

1. Where an execution creditor knows at the time of the