BILLS AND NOTES-Continued.

since his contract with defendant relieved him of the duty.
Id.

See ESTATES OF Decedents (5); PRINCIPAL AND SURETY (1, 3);
WITNESSES.

BONA FIDE PURCHASER — See BILLS AND Notes (3); Liens (2).

BONDS - See INTOXICATING LIQUORS (1-4); MUNICIPAL CORPORATIONS (1); SCHOOLS AND SCHOOL DISTRICTS.

BOUNDARIES -- See ADVERSE POSSESSION.

BREACH OF CONTRACT-See MASTER AND SERVANT (9); MECHANIOS' LIENS; SALES (1, 2, 6).

BREACH OF MARRIAGE PROMISE.

1. In an action for breach of promise of marriage and seduction, wherein it was claimed by defendant that plaintiff had been unchaste after the marriage contract was alleged to have been made, defendant denying making such a promise, the court properly refused to charge, as requested, that such conduct constituted a defense to the action, if proved, and rightly instructed the jury that it could only be considered in mitigation of damages. Houser v. Carmody, 122.

2. Error was not committed by the trial court in further charging, as requested by defendant, that the claimed misconduct of plaintiff would be an excuse for breach of the contract only if defendant learned of the misconduct of plaintiff and because of it refused to marry her, but where, on being advised by defendant's counsel that he did not make any such contention, the court corrected the inadvertence and left the evidence to be considered in mitigation of damages only. Id. 3. The court was also correct in charging the jury and was supported in the same by her testimony, that if the jury found after an admitted lapse from virtue she had retrieved her character and led a correct life until defendant seduced her under promise of marriage, she could recover.

Id.

4. An erroneous assumption of the court made in charging the jury, corrected at the instance of defendant's counsel and again made, but passed unnoticed, held, not to have misled the jury. Id. 123.

5. Alleged objectionable and impassioned argument is not ground for reversal, unless it clearly appears that the argument was unwarranted by the evidence and probably contributed to the result: plaintiff's attorneys were entitled to comment on defendant's income, and amount of property and on plaintiff's loss of social position, luxuries, etc. Id.

See DAMAGES; EVIDENCE (4).

BREACH OF WARRANTY-See SALES (4).

BRIEFS -- See APPEAL AND ERROR (5).

BROKERS.

Plaintiff, a broker, could recover commissions under a contract to pay him two per cent. commission if he should procure a purchaser through the agency of another broker, with whom plaintiff was associated and had listed the farm at a net price; the terms of the contract providing in substance as above stated were not ambiguous or uncertain or open to the construction that plaintiff must himself find a purchaser who would buy the land through the other agency. Cross v. Day, 553.

BUILDING RESTRICTIONS-See DEEDS (3-6).

BURDEN OF PROOF-See BILLS AND NOTES (5); FRAUD (7). BURGLARY-See CONSTITUTIONAL LAW (10-12); STATUTES (1). CANCELLATION OF INSTRUMENTS.

Evidence held to show no fraud or undue influence of complainant's husband in procuring from complainant a deed of real property to himself and her jointly. Steketee v. Newkirk, 222.

See FRAUD (7).

CANCELLATION OF TAX SALE—See Taxation (5, 6).

CAPIAS AD RESPONDENDUM-See ARREST.

CARRIERS-See CONSTITUTIONAL LAW (1, 4, 5).

CERTIFICATE-See ATTACHMENT (4).

CERTIFICATE OF ERROR-See TAXATION (9).

CERTIORARI-See APPEAL AND ERROR (9, 12).

CHANCERY COURTS-See WILLS (4).

CHANCERY RULES-See APPEAL AND ERROR (11).

CHANGE OF VENUE-See CONSTITUTIONAL LAW (14); Courts; VENUE (2).

CHARACTER - See CRIMINAL LAW (20, 22–24).

CHECKS-See BILLS AND NOTES (3).

CHURCHES -- See INTOXICATING LIQUORS (5).

CIRCUIT COURT RULES-See PLEADING (2).

CIRCUIT COURTS-- See COURTS.

CIVIL-DAMAGE ACT -- See INTOXICATING LIQUORS (1-3).

CLAIMS See ESTATES OF DECEDENTS (1, 6).

COLLATERAL ATTACK --See PRACTICE (3).

COLLATERAL CONTRACT-See BILLS AND NOTES (7-9).

COMMISSIONS-See BROKERS.

COMPARATIVE NEGLIGENCE-See CONSTITUTIONAL Law (7). COMPETENCY See INSANE PERSONS (1).

COMPROMISE AND SETTLEMENT - See ESTATES OF DECEDENTS (9).

CONCLUSIONS AS EVIDENCE -- See LIBEL AND SLANDER (1, 3). CONCLUSIVENESS-See MANDAMUS.

CONDUCT OF COUNSEL-See BREACH OF MARRIAGE PROMISE (5); NEW TRIAL (5); TRIAL (1).

CONDUCT OF PROSECUTING ATTORNEY-See CRIMINAL LAW (6, 25, 26).

CONSIDERATION-See BILLS AND NOTES (4-6); Contracts (1); LIENS (2); PRINCIPAL AND SURETY (3, 6).

CONSPIRACY-See CONTRACTS (5).

CONSTITUTIONAL LAW.

1. Act No. 104, Pub. Acts 1909, abolishing the fellow-servant rule as to common carrier railroads, is not unconstitutional within the provisions of the fourteenth amendment of the Federal Constitution forbidding States to deprive persons of life, liberty or property without due process of law, nor is it invalid under the similar provisions of the Constitution of Michigan, § 16, art. 2. Sonsmith v. Pere Marquette R. Co., 57.

2. It does not deprive railroad corporations of the equal protection of the laws. Id.

3. A person has no property, no vested interest in any rule of the common law, which is only one of the forms of municipal law and is no more sacred in character than any other. Id. 4. The tendency of the changes made by the act is to compel carriers to avoid or prevent the negligent acts and omissions which are made the basis of the right to recover, thereby promoting the safety of employés, and advancing commerce in which they are engaged. Id. 58.

5. The classification of railroads to be affected by the act so as to include only common carriers is not arbitrary or unauthorized. Id.

6. Section four of said act is not invalid because it unduly restricts the employer's right to contract by depriving the defendant of the benefit of any contract against liability, or of indemnity, as an absolute defense. Id.

7. The legislature had power to provide that plaintiff might recover if his negligence was less in degree than that of the employé causing his injury: and the provisions of section two are valid and do not interfere with the established judicial power under the Constitution. Id.

8. In order to recover plaintiff must establish actionable negli

CONSTITUTIONAL LAW-Continued.

gence: the court is not deprived of the duty to determine whether evidence is presented tending to show the same. Id. 9. Act No. 707, Local Acts 1907, is invalid because it attempts to amend the charters of four distinct villages, thereby embracing four distinct objects within its purview; and because provisions for borrowing money and issuing bonds are not included within its title, "An act to regulate the making of special assessments within the villages of Highland Park, St. Clair Heights, Hamtramck and River Rouge, in the county of Wayne." Cote v. Village of Highland Park, 202.

10. Imprisonment of not less than 15 nor more than 30 years, for the crime of burglary accompanied with the use of high explosives, is not a cruel or unusual punishment prohibited by the State or Federal Constitution and Act No, 64, Pub. Acts 1907, creating the crime, is valid, being within the discretionary power of the legislature. People v. Mire, 357.

11. The purpose of the act is sufficiently expressed by the title which describes the object as "defining the crime of burglary with explosives and providing the punishment therefor." Id. 12. That it creates a crime not recognized by the common law, or defines burglary in a new and different way, is not a ground for adjudging the statute unconstitutional. Id. 358.

13. The objection that the enactment places a greater burden on some than on others and provides unequal protection, because various other statutory enactments prescribe milder penalties for kindred offenses, included within the offense charged against respondent, is overruled; as is also the objection that it is invalid because it places in the hands of the prosecuting attorney the authority to determine under what statute prosecution shall be instituted. Id.

14. A change of venue authorized by 1 Comp. Laws, § 309, as amended (4 How. Stat. [2d Ed.] § 11784), upon motion of the prosecution, is valid, and does not infringe upon the constitutional right of trial by a jury of the vicinage. Constitution, art. 2, § 13. Glinnan v. Judge of the Recorder's Court of Detroit, 674.

See CRIMINAL LAW (14, 15, 17); ESTOPPEL (1); INJUNCTION;
STREET RAILWAYS (7); TAXATION (2).

CONSTRUCTION OF FRANCHISE-See STREET RAILWAYS (5, 6).
See MUNICIPAL CORPORA-

CONSTRUCTION OF STATUTES
TIONS (6); STATUTES.

CONTEMPT.

1. A respondent in contempt proceedings is not chargeable with contempt of court for refusing to obey an opinion or order of the court requiring her to pay certain funds to the complainant, if she acted under advice of her solicitor and purposed taking an appeal from the order as soon as a formal appealable decree should be drafted. Ladies of the Modern Maccabees v. Daley, 577.

CONTEMPT-Continued.

2. But having acted upon the opinion or order of the court filed in the cause, by claiming and receiving from the register of the court funds that the order awarded to her, and by taking preliminary steps to perfect an appeal, respondent lost the right to insist that a final order had never been entered. Id. CONTRACTS.

1. A written agreement, made after concluding an oral sale of defendant's business and after payment of a part of the purchase price, might contain an additional clause or promise not included in the parol agreement, and prohibiting the defendant from engaging in business within the city, where the sale took place, while complainant should remain in business there; payment of the purchase price was sufficient consideration to support the covenant. Weickgenant v. Eccles, 695.

2. In a written contract all previous parol contracts relating to the same matter are merged, and they are not admissible in evidence. Id.

8. The clause in restraint of trade was neither unreasonable as to space or time, and was valid, being within the exception of Act No. 329, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 2942). Id. 696.

4. On the ground of alleged incompetency to contract, proof of defendant's nervous and weakened condition was not a sufficient foundation to invalidate the restrictive covenant in the contract, which he had not attempted to repudiate as a whole by returning the consideration or by other affirmative action, although he had recovered his health and desired to re-engage in business. Id.

6. Evidence showing that defendant's wife opened a furniture business under the name of Eccles Furniture Company, that defendant furnished the money and credit to launch it, and acted as manager, using his wife's name and the trade name to evade the stipulation against competition with complainant, and that she knew about the agreement, warranted a finding of conspiracy between them to violate the terms of the covenant and justified a decree against both restraining them from violating the contract. Id.

See BILLS AND NOTES (7-9); BROKERS; CONSTITUTIONAL LAW (6); CUSTOMS AND USAGES (1-5); ESTATES OF DECEDENTS (4, 5); INSURANCE (2); LIENS (1); MASTER AND SERVANT (6-9); MECHANICS' LIENS; MUNICIPAL CORPORATIONS (1); NOVATION; PARENT AND CHILD (3); PRINCIPAL AND AGENT; PRINCIPAL AND SURETY (3, 4); PUBLIO OFFICERS; SALES; STREET RAILWAYS (7).

CONTRIBUTORY NEGLIGENCE-See HIGHWAYS AND STREETS; INSURANCE (4); MASTER AND SERVANT (2, 3, 5, 14); NEGLIGENCE (4); RAILROADS (2); STREET RAILWAYS (3); TRIAL (3). CONVEYANCES- See LIENS (1).