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Per Curiam. Tbe clerk has no authority to determine wbat deduction should be made on account of undue prolixity. It rests entirely with tbe court to determine whether such an abuse exists, and this will be done usually when tbe ease is disposed of. It is not always tbe fault of tbe appealing party that tbe record assumes undue proportions, and be should not be punished unless in fault. In tbe present case we were not satisfied there was any such fault in tbe plaintiff in error as to bring him within the rule, and we therefore did not, and shall not now impose any penalty, or make any deduction. Motion denied.

Graves, J. The circuit court affirmed the judgment rendered by a justice of the peace in favor of Dodge against Rawdon, and the latter alleges error. The declaration specially described the cause of action as arising upon a contract between the parties whereby Rawdon agreed to pay Dodge $90 in case the latter would cause two specified mortgages on a given.parcel of land to be discharged, and would also cause the equity of redemption then held by one Sayles and wife to be conveyed to him, said Eawdon. The agreement, rested on a verbal understanding, and Eawdon refused to carry it out. He declined to be bound by it, and would not accept a deed. His counsel at the trial objected that verbal testimony was not competent, but the justice admitted it. It is now urged that the charge of error is not supported by the exception which was taken, and moreover that proof of a void agreement could not have worked prejudice. We think the record sustains the allegation of error, and that if the agreement was not enforceable, because it was not written, the admission of verbal evidence to show it would not be thereby excused. The point of the objection was that the plaintiff’s case should not be maintained before the jury by a kind of evidence made incompetent by statute, and it would be a strange answer to say that as it was incompetent its admission is not a good ground of error. It is not claimed that written evidence was not necessary to show the agreement for the transfer of the equity of redemption, or that there was any such evidence, and the record imports that no proper writing was ever made. The agreement was that an interest held by Sayles in the land should be conveyed to Eawdon, and the transaction was within the words and policy of the statute. Comp. L., §§ 4692-4694. The fact that the interest to be transferred was not then in Dodge, but was vested in Sayles, could make no difference. It was a contract for the sale of an interest in land, and it is not important that the title then resided in a third person. In addition to the authorities cited for plaintiff in error, the following may be consulted: Wright v. De Groff, 14 Mich., 164; Scott v. Bush, 26 Mich., 418; Same v. Same, 29 Mich., 523; Purcell v. Miner, 4 Wall., 513; Erben v. Lorillard, 19 N. Y., 299. The judgment below must be reversed, and plaintiff in error will recover his costs of all the courts. The other Justices concurred.

Marston, J. These cases were heard together and will be disposed of as one case. In the petition for acquiring the right of way, it was set forth that Mary A. Patón owned or claimed to have an estate or interest in the lands sought to be acquired. Mary A. Patón did not appear, and a discontinuance as to her was entered. It appeared that she had a mortgage upon the premises. The statute under which these proceedings were instituted requires the names and places of residence of the parties “who own, or have, or claim to own, or have estates or interests in said lands or property” * * * “together with such other facts and allegations as to incumbrances or otherwise, as will be sufficient to show who have, or claim to have, interests in said lands.” 1 Sess. L., 1873, p. 511, § 18. It is clear that under this statute incumbrancers must be made parties in the first instance, and if so the design could not have been to make them parties in the petition and then discontinue as to them afterwards. The whole object was to enable the railroad company to acquire an unencumbered title to the lands, and this could only be done by bringing in all parties interested in the premises and retaining them until their rights were adjudicated upon. The interest of a mortgagee in lands sought to be acquired by a railroad company may be far greater than those of the mortgagor, and the interest sought by the company must in all cases affect the rights of the mortgagee, while in some it would be an entire destruction thereof. . Other considerations might be mentioned, but the above are sufficient. The statute wisely provides for settling all questions, so far as known, concerning the rights and interest of parties, in one proceeding, and within the principle of Grand Rapids etc. v. Alley, 34 Mich., 16, the discontinuance was fatal. Another question was raised which may become important in subsequent proceedings. It appeared that some of the jurors had given their notes to the railway company to aid in the construction of the road, “payable when the cars run over the said road from Borneo to the city of Pontiac.” This clearly rendered such persons, incompetent to sit as jurors in the case. The fact of giving such a note shows them to have been interested in the construction of the road to the city in which these lands were located, and that they had agreed to materially assist the company in so building the road. It is evident that to a company thus seeking and receiving aid, the amount it may have to pay for the right of way must become a very material fact. Every dollar it can thus save is equivalent to so much subscribed to aid in the construction, so that these jurors, by reducing the damages to be paid in this case would by just so much be aiding the company in the construction of its line between the points named. The less damages the company should be obliged to pay, the greater the probabilities of the construction of the road. 'These considerations may have had no influence whatever with the jury in this case, and it is not necessary that they should have. The law very wisely prevents all danger of abuse, by declaring that any person interested shall thereby be disqualified. In this case it is claimed the counsel for the respective parties, knowing that these jurors were so interested, stipulated that they should nevertheless act. We do not so understand the stipulation. But even were this so, still we think the objection would not thereby be removed. The policy of the law forbids an interested person from sitting as a judge or juror in that case. Were this permitted, no matter how impartially and honestly the person should act, yet his motives would be questioned, and the result could only be to bring the administration of the law into disrepute. The law looks beyond the effect upon the immediate parties to the action. And while they might by stipulation waive any personal objections they might have or be entitled to, yet in so far as the rights or interests of the public were concerned, they could not waive them. They might have stipulated that the damages should be fixed and determined by the railroad company, and been bound thereby, but the proceeding in such a case would not be a judicial one in the courts and in accordance with the laws of the land, but one created by the parties, and governed by their agreement. It was said Mrs. Patón could not appeal, the case having been discontinued as to her. But she having an interest in the premises, her right could not be cut off in this way. The proceedings in each case must be set aside and held for naught, with costs. The other Justices concurred.

Marston, J. Freoff brought an action of trover to recover the value of certain property [including a number of animals] taken by Mrs. Brink upon a chattel mortgage after default in the payment of the first installment, and. sold to satisfy the entire amount secured by the mortgage before due. Mrs. Brink had the right to take possession of all the property covered by the mortgage, and sell sufficient of the same to satisfy the amount then due with interest and costs thereon. When the mortgaged property consisted of several articles or things, as in this case, after sufficient was sold for the purpose mentioned, she could not proceed and sell the balance of the property in satisfaction of or to apply upon the installment not then due. To permit this would be to allow payment of the debt before due, but it would deprive the mortgagor, or those claiming under or through him, as creditors or assignees, from redeeming the property by a payment of the debt when due and before sale. This right is a substantial one of which the mortgagor cannot thus be deprived. The authorities referred to in the brief of counsel, which seem to hold that after a default in the first installment, the entire property mortgaged, although severable, and more than sufficient to pay the amount due with costs, might be sold, are based upon the theory that the mortgagee’s title to the property becomes absolute upon default, a doctrine which at present has no standing in this State. A chattel mortgage being a mere security for payment of the debt secured, the mortgagee cannot sell and dispose of the property in satisfaction of the debt until it becomes due; and no matter how advantageous it might appear to be for the mortgagor to have this done, in order to prevent cost and expense in ■ feeding and earing for the property while in possession of the mortgagee, awaiting the maturity of the debt, yet this, unless otherwise agreed upon, cannot be done. The statute permits a sale of the entire property under a real estate mortgage in certain cases, and an application of the proceeds thereof upon installments not then due, but. it has no bearing upon cases like the present. A question as to whether a tender of the amount of the debt was made before suit brought, became of some importance on the trial. It appeared that a tender or offer of the money was made, coupled with a demand for the property wrongfully sold; that at the time this offer and demand were made, Mrs. Brink did not have the property, except one horse, the same having been purchased by third parties at the sale; that she so informed the parties making the offer. Indeed this fact was well known to all. It is said that a tender to be good must be unconditional. This is true where the condition is one which the party has no right to make. Ordinarily upon payment of the debt the mortgagor would be entitled to restoration of the possession of the mortgaged property, if held by the mortgagee, and I can see no good reason why he should not be entitled to demand possession at the time of the tender. Of course the mortgagee would be entitled to a reasonable time in which to comply with the demand. Such is not the case, however. Here the offer of payment was only made upon the terms of the mortgagee’s performing an impossible condition precedent. Such an offer might as well never have been made. All parties well knew the condition could not be performed, and therefore that Mrs. Brink could not get the money. It was a mere useless ceremony to offer it and could place the parties in no other or different position than they were. It remains to be considered what the measure of damages should be. The debt was not paid, but in this case it could not be set off against the plaintiff’s claim. The sale of the property by the mortgagee before the debt became due was a conversion, but in an action of trover to recover the damages sustained thereby, the plaintiff could only recover the value of the property less the amount 'of the debt for which it was security, together with any special damages he might be able to. prove. This is the extent of his damage. This disposes of all questions between the parties in one action and gives each what rightfully belongs to him. Had a third person seized and sold this property and applied the proceeds towards the extinguishment of this or any other existing indebtedness of the mortgagor, in an action brought to recover damages therefor, such use of the proceeds could not be shown to reduce the damages. In this case we think the rale is different. The mortgagee was clearly entitled to the possession of the property, and had the right to sell a portion of it. In proceeding farther she was in the wrong, but acted: in good faith in selling and applying the avails in satisfaction of the claim, although not due. That such wás an injury to the mortgagor there is no-doubt, but the extent thereof, taking the entire transaction, would not be the full value of the property. Should we hold such to be the law, then clearly the mortgagee could sue for and recover the indebtedness.' Thus the parties at the end of the entire litigation would be in the same position, less costs and annoyance, that they would be were the entire controversy disposed of in the first action. Fowler v. Gilman, 13 Met., 267; Cooley on Torts, 457, n. 1; and authorities cited by counsel for plaintiff , in error. It follows- that the judgment must be reversed with costs and a new trial ordered. , . . The other Justices concurred.

Graves, J. The plaintiffs recovered judgment against defendant for certain commissions, and a review of the proceedings is asked upon a case made. The defendant owned certain real estate he wished to sell or exchange, and he employed the plaintiffs to aid him. The arrangement was in' writing and signed by defendant in a book kept by plaintiffs for such entries. After designating the property and the price and setting down the amount to stand on mortgage and the time of credit and rate of interest, it proceeded as follows: “I hereby place the above described property in the hands of Messrs. Scribner and Potter for sale, or exchange for farm property at my option, and agree to pay them a brokerage commission of 2J per cent, when sale or exchange is made, and further agree to render all the assistance I can in making such sale or exchange.” At the same time, this arrangement was made, the plaintiffs were under a similar retainer from persons by the name of Warren, who had a farm they wished to sell 'or exchange. Of this fact the defendant was ignorant. In the course of a few weeks the plaintiffs facilitated the opening of negotiations between the Warrens and defendant, and the parties not long after, through the aid of plaintiffs, consummated a trade, the Warren property, however, being granted to Homer A. Collar, a son of defendant. There were some special circumstances connected with the substitution of the former for the latter as grantee which are somewhat obscure, to say the least, but the result is not governed by them. After this trade it was ascertained by the defendant that during the negotiation the plaintiffs were acting under retainer from the Warrens, and for an agreed compensation, and he objected in the court below and objects here that the fact is a complete answer to the action. The plaintiffs’ counsel have not contested and do not contest the principle that the same person cannot be the agent of both parties in reference to a matter where discretion is to be exercised upon interests which are conflicting. He contends that the plaintiffs were not in that situation, but on the contrary that the retainer taken by the plaintiffs required them to do no more than bring the parties together, and that in this the interests of defendant and the Warrens were concurrent and not conflicting; that these persons were left to negotiate as they pleased and uninfluenced by the plaintiffs; that no opportunity existed for any infringement of good faith, and that it was just and lawful to take employment and pay from both sides. There is nothing in the record to impugn the personal fairness and integrity of purpose of the plaintiffs in this transaction, and the only question is whether the undisclosed arrangement to act for each side so accords with public, policy as to afford a ground of action to recover pay for the service. There is some contrariety of decision in regard to the right to accept a double retainer and double pay, even when the fact is disclosed to both parties. Farnsworth v. Hemmer, 1 Allen, 494; Walker v. Osgood, 98 Mass., 348; Pugsley v. Murray, 4 E. D. Smith, 245; Everhart v. Searle, 71 Penn. St., 256; Raisin v. Clark, 41 Md., 158; Schwartze v. Yearly, 31 Md., 270; Morison v. Thompson, L. R., 9 Q. B., 480: 10 Eng., 129; Rice v. Wood, 113 Mass., 133; Lynch v. Fallon, 11 R. I., 311. But the cases are nearly, if not quite, uniform that where the double employment exists and is not known, no recovery can be had against the party kept in ignorance, and the result is not made to turn upon the presence or absence of designed duplicity and fraud, but is a consequence of established policy. The opinion has been expressed that where the person is employed merely as a middleman to bring persons together and has no duty in negotiation and has not engaged his skill, his knowledge or his influence, he may lawfully claim pay from both parties. Rupp v. Sampson, 16 Gray, 398; Siegel v. Gould, 7 Lans., 177. No doubt such cases may occur; but their exceptional character should appear clearly before they should be exempted from the general principle. In Walker v. Osgood, supra, the court explained Rupp v. Sampson and pointed out the distinction on which it proceeded. The plaintiff was employed merely to perform a preliminary act. His sole office was to bring two specified persons together. The-, plaintiff’s counsel in this case has mistaken, as I think,, the construction due to the writing on which the case i& based. The employment was not merely that defendant-, and some third party should be brought together for mutual negotiation with an option on defendant’s part to do anything or nothing. The' writing placed the property for sale or exchange in plaintiffs’ hands and then reserved an option as to whether the final disposition should be a sale of an exchange and expressly required defendant to afford the plaintiffs all the assistance he could in making such sale or exchange. The contract had large scope and went much further than to constitute the plaintiffs mere middlemen to bring some particular third person, or even any one in general, into a position to negotiate with the defendant. It conferred authority to negotiate and reposed trust and confidence and eonemplated that the plaintiffs should act in defendant’s interest and should exert their judgment and their influence in his behalf. Such was the contract entered into and there is no other to support a recovery, and the view most favorable to the plaintiffs is that the evidence of their claim did not depart from it. The proof of a case not consonant to the writing would of course be of no avail. No other relation than that caused by this agreement is involved in the ground work of the alleged cause of action, and no showing of a different relation can be urged by plaintiffs to sustain their case. Whether they interfered more or less or not at all with the negotiations could not change the relation caused by the contract or increase or diminish their duty under it. If their judgment and influence were due to defendant, if they owed him the full measure of their skill and favor to assist him to reach a result most advantageous for him, it might well be that omission to interfere and take an active part would be a failure of duty, and- this failure moreover might be a consequence of the adverse retainer. The parties employed might not be conscious of any bias and still be induced to maintain an inactive or neutral position instead of the helping and positive position bargained for. There might be this or that degree or extent of dereliction as a consequence of the employment by the other side, and yet no actual moral lapse be involved. It seems to me there is no escape here from the rule of policy before mentioned, and that the judge ought not to have submitted the case as he did upon the theory of plaintiffs’ counsel. In view of the special circumstances disclosed by the record, a contrary result, were it admissible, would not be distasteful. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred.

Marston, J. The record presented in this case is very unsatisfactory indeed, and must prevent us from passing upon the questions raised as was expected by counsel. It was claimed upon the argument that in Yost v. American Ins. Co., 39 Mich., the court disposed of the case when the facts were not fully presented and upon a point not raised by counsel, and the decision in that case was for these reasons criticised somewhat. The present, it was said, was a supplemental case to the one referred to, and stated more fully the contract between the parties, and because of these additional facts and the benefit of an exhaustive argument, we are asked to reconsider the questions then passed upon. In Yost's case we held that the note sued upon and the policy of insurance were parts of but one transaction and should be construed together, and from this we see no reason to depart. On turning to the record we find that the evidence introduced before the justice by whom this case was tried consisted of a written stipulation signed by counsel for the respective parties, and of certain exhibits referred to therein. Exhibit A is the note sued upon, and Exhibit B defendant’s application for the policy, and upon which the policy was issued. The other exhibits were notices or copies of notices served upon defendant requesting him to pay the installments due, and calling his attention to the penalty in case of failure to pay, by attaching thereto what purported to be a copy of an act to amend the charter of the plaintiff insurance company. The policy issued to defendant, which formed a material part of the contract, was not attached to the stipulation nor introduced in evidence, nor a copy thereof, nor was its loss or absence accounted for. The stipulation referred to, states that the policy was in the usual form, leaving us to guess what is the-usual form of a policy of insurance. It farther states that it was provided in said policy as to the effect of a default by the insured in the payment „ of any installment of the premium. The provisions of the policy pertaining thereto are not given, but only the stipulation of counsel as to the effect of those provisions. We are asked therefore to construe the contract entered into between the parties, not from an inspection of the same, but from counsel’s version of the legal effect of some of its provisions. . If counsel are not more correct in their statement of the provisions of the policy than they are in setting forth in the stipulation the force and effect of the sections of the charter referred to, then it would be very unwise indeed for us to act thereon, and we might find it claimed here after that the case had been decided upon a partial statement or misstatement of the terms of the contract. It may also admit of some doubt whether there is anything in the ease properly showing that the provision referred to has been properly shown to be a portion of the charter of the insurance company. These difficulties show some of the dangers that might be likely to arise, where counsel attempt to confine the court to such questions as they think proper to present. We regret that all the facts were not fully set forth in this case, but as they have not been, we deem it best not to enter upon a discussion of the questions presented. One farther suggestion might be made in view of any question hereafter arising in similar cases, viz.: how far a mere reference in a policy of insurance to the provisions of a charter of a foreign insurance company, or of a local or private act of the legislature of a foreign country, can be considered binding upon the person accepting the policy. This question arises, with others, and has not thus far been discussed. As the record now stands ,We can but affirm the judgment of the circuit court affirming the justice’s judgment, as the plaintiff did not prove such a case as would entitle him to recover. The judgment will be affirmed with costs. The other Justices concurred.

Cooley, J. The defendants in error brought action in the court below to recover damages for defects in a steam-boiler which plaintiffs in error constructed and put up for them in a vessel under a special contract. By the verdict of a jury they recovered a judgment of one thousand, dollars. Many exceptions were taken on the trial, but the only one requiring attention relates to the rule of damages. The judge instructed the jury that if, by reason of the defects the boiler was worth less than the contract price, then the plaintiffs would be entitled to recover whatever amount the boiler is worth less than the contract price. This was erroneous. He should have instructed them that plaintiffs were entitled to recover the difference in value between the boiler as it was with the defects, and the boiler as it would have been if completed in compliance with the contract. This latter sum might be more than the contract price, or it •might be less, but it was obviously the proper standard by which to measure the damages of plaintiffs, because a boiler so completed was exactly what they were entitled to. We say nothing concerning any special damages, because no question respecting such damages is before us. The judgment is reversed, with costs, and a new trial ordered. The other Justices concurred.

Marston, J. This is a controversy concerning the title to certain horses and oxen. The parties entered into a logging contract, and agreed that there should be deducted out of the last payment pay for the tools and teams furnished by Haire. February 1st, 1877, the parties met and had a settlement of account up to that date, in which the teams were charged up to Bonn and Buehannan in the account, and this settlement showed a balance in favor of Haire of $40.45. The next day a mistake was discovered in this account showing the balance to be greater than as first stated. There was evidence tending to show that at the time the parties looked over their accounts in February, plaintiff released his title to the teams to defendants and agreed upon the manner in which the balance should be paid, and there was evidence tending to show the contrary. There was also evidence tending to show that subsequent to this time another agreement was made under which defendants were to haul logs to pay for the teams. De fendants being in possession of tbe horses and oxen, plaintiff brought replevin therefor. The court charged the jury that “if it was the understanding between the parties at the February settlement that the title was to pass to Bonn and Buchannan, then such understanding would have this effect, otherwise not. This understanding must be an express one, not an implied one. In this last remark we think the jury were misled, and must have understood, or at least may, that unless they found an express agreement of the parties, made on the 1st of February, that the title to the teams should pass notwithstanding the fact that they had not been fully paid for, they must find for the plaintiff, and that such an agreement could not be implied from what then and subsequently took place. Now the jury may not have been able to find that the parties did in so many words expressly agree that the title should pass, and yet they may have been satisfied that both parties understood and acted upon the assumption that such was the fact. “What the parties said and did, in view of the small balance then supposed to exist, may have been equally clear and convincing, as though they may have in so many words said that the title should and did pass. A new trial must be ordered, so that the question may be submitted to the jury under proper instructions. Judgment reversed with costs and a new trial ordered. The other Justices concurred.

Campbell, C. J. Henry Nibbelink, the defendant in error, presented certain claims against the estate of his father, Seth Nibbelink, which were rejected by the commissioners, but allowed on appeal to the circuit court for Ottawa county, from which error is brought into this eourt. These claims consisted chiefly of earnings paid by Henry into the family stock, and services rendered to his father, and various outlays. The earliest items were for his wages in an establishment known as the Plugger Mills, in 1865, 1866, 1867 and 1868, alleged to have amounted to over $1,500. The claim filed averred this to have entered into an account stated in 1873, when it is claimed the decedent agreed to convey to Henry a farm known as his Yriesland farm, in Ottawa county— the parties living in Holland in the same county. This farm having been sold by Seth Nibbelink, a claim is .set up for the proceeds, — set up as $3,600. The other items claimed are money paid out for building a house, claimed at $1,090, and labor amounting to $75. Henry lived with his father until some time in 1873, when by reason of disagreements between their wives he left, and a settlement was had which became somewhat important on the trial. A written instrument was executed by Henry, which as translated consists first of an acknowledgment of the receipt of two horses and their harness and appurtenances, one wagon and whatever belonged with it, one cow, one bed and its belongings, one bedstead, six chairs, one table, one stand, five pieces of pork, one piece of meat, one bag of corn, two bags of oats, one-half ton of hay, three cords of wood, six chickens, one rooster, two chains. These he acknowledged to have received for labor done up to that time. The witnesses testified that at the same time his father promised that he should have the Vriesland farm, but when he was to have it, — whether before or at his father’s death, and whether it was wholly or only in part in recompense for his services and aid to his father — is not agreed upon or made very clear. His brother Jacobus had obtained another farm, partly, at least, as a gift, and there was some testimony indicating that the farm to be given to Henry was also in part a donation. The father died testate and gave Henry nothing but a nominal legacy. Several questions are presented on the record and ■reference will be made to such as are material. Testimony was introduced for the purpose of showing the earnings at the Plugger mills, and this was' allowed to go to the jury as a cause of action. Objection was made to it as barred by the statute of limitations, and also that it was not covered by any proper averment in the declaration. If properly declared on, it might possibly have been ¡shown to have belonged to a series of open dealings which were #not closed until within six years before the father’s death. Carter v. Carter, 36 Mich., 207. It was claimed that all of Henry’s earnings went into the hands-of his father while they lived together, and it could not, until all the proofs were in, be known how far any such items, if proven, would be barred. But under the claim made before the commissioners- and the bill of particulars with which the declaration must be made to conform, it is doubtful whether this item can be regarded as averred as a ground of action. It is set up as resting in a mutual or open account-which was settled in 1873. If it was set up as a single demand not reduced by mutual credits, it would very clearly have been barred. There is undoubtedly some ground for construing the claim in the probate court as-embracing the whole amount of these earnings as having; been unpaid, and merely liquidated in 1873, when it is-alleged Seth promised to pay the debt by a conveyance' of the Vriesland farm. A verbal promise in 1873 to pay this old debt, if not kept open by mutual dealings, would not have renewed it so as to save the statute. Comp. L., § 7160. There was no evidence whereby the amount due in 1873 could be got at so as to identify this item,, or any others if there was any settlement of mutual demands. And we think the basis of the claim intended to be relied on was the promise to pay whatever was then settled upon, whatever may have been its origin. This leads to another chief question in the trial. We. have discovered nothing to determine what was the-amount supposed to be due Henry in 1873, except as it may be supposed to be measured by the value of theVriesland farm, and it seems probable that the jury acted upon this as furnishing the only tangible measure of damages. The agreement to convey the farm was void under the-statute of frauds. To allow the value to be used for any purpose in evidence would be practically to enforce this void contract. Colgrove v. Solomon, 34 Mich., 494. There was no testimony whatever from which it can be inferred that the parties estimated either the value of the farm or the value of the indebtedness, or compared them. It was error to allow this matter to be laid in any form before the jury. The outlays of Henry within six years before his father’s' death in building were properly admissible, and the proof of the value was made by the estimates of a witness who had some means of knowledge. In the absence of any written evidence of a primary character we think this was admissible. No demand for labor prior to 1873 is made in the claim on file, and all evidence of it was therefore irrelevant. It seems moreover to have been settled by the receipt of 1873. Several minor questions of evidence were raised which will not probably arise again, and therefore we pass them by. The chief difficulty seems to have arisen from disregarding the form of the claim sued on. The charges complained of come within the same observation. Judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Campbell, C. J. Mrs. McClung filed her bill for divorce on the grounds of cruelty and adultery. The causes of trouble, so far as they appear in the proofs, are very closely connected, and arose chiefly from conduct of an improper character with two women named Taylor and Jadwin. The defense rests on either denials or explanations of the conduct complained of, and on the claim that defendant was wrongfully prevented from putting in his proofs. The last point requires consideration by itself. The case was put at issue June 3d, 1876, and the time for taking testimony was enlarged by stipulation until some time in February, 1877. On tbe 10th of that month an order was made based on defendant’s contempt in not paying alimony, whereby, among other things, proceedings on his part to take testimony were stayed till further order. Time was thereafter allowed complainant upon showing to take further proofs. They were finally closed in November, 1877, and the court refused to open them. There is nothing to indicate that defendant was deprived of taking any testimony he intended to take before the original time had run out. His affidavits made on more than one occasion indicate that he did not intend to introduce testimony to controvert the complainant’s proofs until some of her later witnesses had shown facts which seemed to him worthy of reply. We find nothing which satisfies us that he had not the fullest opportunity of cross-examining complainant’s witnesses, and it. was in most cases exercised as fully as justice required, and more fully in some cases than propriety demanded. As to his own proofs of which he claims to have been deprived, we do not think tho theory set up is the correct one. Every person from the allegations in the issue made is supposed to understand that an attempt will be made on either hand to prove or disprove each important fact. It is expected that each party will proceed within the time fixed by the rules of practice to introduce such proofs as will make out his cause or defense. Under the English practice the whole testimony was closed before either party was at liberty to know what had been sworn to. After publication it was a very rare thing to open proofs so as to allow contradictory evidence to be put in, because of the danger of fabricating testimony for the occasion. Our practice prevents surprise by allowing open examinations. But it has never been customary to favor the practice of keeping back testimony on one side until proofs are .concluded on the other. The court necessarily retains power to protect parties against surprise; but no one can be allowed to wait beyond the ordinary period for closing proofs, and then get leave to bring in Ms contradictory testimony without showing very clearly that justice requires it, and that he has not been at fault so far as to have lost his claim to favor. Thayer v. Swift, Walk. Ch., 384; Hamersly v. Lambert, 2 Johns. Ch., 432. While it is undoubtedly competent, and often proper to open proofs generally and allow further testimony on both sides, yet under the old practice that was seldom if ever done, and the occasion for further proofs may affect one party, or one party may have special equities. It was not irregular to allow complainant to take proofs when such liberty was not extended to defendant. As to its propriety these considerations appear plainly: defendant pertinaciously and vexatiously refused to pay the alimony ordered by the court, and put complainant to inconvenience and offensive annoyance. She had not the means he was bound to give her of expediting her cause. On the other hand, defendant could at any time have taken his own proofs, and when he applied to the court for what was matter of favor and discretion, he was still in open contempt, and his affidavits were contradicted, and in some respects at least palpably false. We are not called on to consider whether the court can deprive a party of a right, in addition to the usual punishment for contempt. It is certain that no court is bound to extend any favors to persons who disregard its authority. We think the cause was properly heard on the testimony. The case made by the bill rests upon charges of cruelty, involving misconduct with other women and adultery. The specific charges of adultery mention only the name of one Sarah Taylor. The proofs refer in addition to Minerva Jadwin, who is not mentioned by name in the bill, although coming within some of its general references. The court below granted a divorce for cruelty, regarding the misconduct shown as amounting at least to that. The defendant claims that complainant was a consenting and implicated party in all of the grievances chiefly relied on, and denies either cruelty or adultery. It would serve no good purpose to enlarge upon the details of this case. An outline of the facts will serve to explain its character. The parties were married very young, and are now between fifty and sixty years old. Both were in moderate circumstances, and neither refined nor cultivated. They were frugal and industrious, and from their marriage in 1840 until they removed to Michigan in 1851, had accumulated some property. From 1851 until 1869 or 1870 they lived on a farm near Niles, and during that period defendant became comparatively wealthy. They then moved into the city of Niles, where they have since lived, and where defendant has considerable investments in property. They have one child, a son who has been for several years settled on a farm with his family. Some time after moving to Niles, the parties who had previously been connected with the Methodist church, became attached to spiritualism, and Mrs. McClung became a medium, under the supposed influence of an Indian whom they called Kenowassa. Their house was much resorted to for meetings, and they visited other places to attend them. Three or four years before the bill was filed, the bill claims, and we think the proofs show, that defendant took up, in addition to his former doctrines, opinions in favor of freedom from the obligations of the marriage relation, and unrestrained liberty of conduct. Complainant claims that the result of this was a change in his treatment of her, including not only neglect, but abuse and cruelty in various ways, aggravated by misconduct with other women. Defendant insists that complainant herself entertained the same loose opinions, and denies that he was guilty of any actual misconduct. The testimony of a large portion of the witnesses is open to scrutiny. They appear to be, in the main, fanatics and vagabonds, on whose unsupported evidence it is not satisfactory to act. It is certain that complainant had in her house inmates who were coarse and not very decent in their ideas, and that she has continued to have such associates. But after a careful view of the facts, we think it appears that complainant, though not refined, has never ceased to have virtuous notions, and that she suffered in mind and body from the conduct of her husband. He ceased to have any personal regard for her, and not only persistently annoyed her with offensive displays of his depraved sentiments, but manifested and openly expressed his dislike to her and his preference for other women, who held the same opinions with himself. No one can doubt that depraved persons holding such sentiments and consorting together committed such offenses as they had opportunity to commit. ' And it would be hard to conceive of any worse cruelty to a wife, who had any sensibility left, than such a course of conduct. No assault or bodily injury could make it worse. Without dwelling ron the facts, we think a case of cruelty was made out. And we think there was full proof of adultery, — although, possibly, if this were the only cause alleged, an amendment of the bill might have been required. We think the decree for alimony should not be disturbed. The experience of the past shows that if an annuity had been granted, instead of a gross allowance, defendant would probably resort to every means in his power to avoid its regular payment. We do not think' complainant should be any longer exposed to the annoyances which any dealings with him are likely to bring. There is some difficulty in arriving at the truth concerning the exact extent of defendant’s means. We do not feel disposed to question the correctness of the conclusions of the circuit judge on this head. The time for making the payments may be counted from the date of our own decree of affirmance. In addition to the amounts decreed, defendant must include in the first payment an additional sum of twelve hundred dollars in lieu of interest and allowances to complainant for the delay and for her expenses in this suit beyond taxed costs. The decree must therefore be affirmed with costs, with these additions and modifications. The other Justices concurred.

Graves, J. One William Dunham and the plaintiff' in error, John C. Clark, being owners of a steam saw mill at Frankfort, leased the same in writing to one J. Beed Emery for six months from April 24, 1877. Emery entered under the lease and held not only to the end of the term on the 24th of October, but until some time in. the ensuing November. At some time during the term Dunham conveyed to the plaintiff in error, Stokoe. On the 19th of October Emery purchased a gang edger, and within a day or two, and before the close of his term, set it up in the mill and bolted and attached it firmly thereto. He used it in connection with the mill from that time forward until some time in November, when he surrendered the mill, together with the gang edger, to the plaintiffs in error, and never afterwards did anything in or about the premises. The machine remained as Emery affixed it and the plaintiffs in error made use of it as owners in connection with the mill. May 6th, 1878, and about six months after his surrender to plaintiffs in error, Emery gave a bill of sale of the edger to defendant in error. And some time in the fore part of that month, the precise time not appearing, the plaintiffs in error, in order to accommodate the establishment to the manufacture of railroad ties, detached the machine and set it one side in the mill. On the 16th of the same month the defendant in error seized it on the writ of replevin in this suit and based his right on the bill of sale. At the trial the plaintiffs in error claimed, first, that, the machine having been firmly annexed by their tenant, and not having been detached during his term or occupancy, and he having surrendered the premises without having made any removal or any sort of exception or reservation, it became irremovable by him or any one in his shoes, and vested in them; and second, that'they in fact acquired his interest by express purchase at the time the machine was being annexed. There was evidence in favor of their claims. The jury found for defendant in error and the other parties except to the charge and to certain refusals. In the course of his testimony the husband of Mrs. Stokoe, who appears to have acted as her agent, stated that he “paid to Butler $150 for rent of mill site.” And this expression, which appears in the record isolated and unexplained, has been made use of to justify an argument that plaintiffs in error were not seized of the freehold, but were merely tenants for years; that their term was yet.running; that the annexation of the gangedger and Emery’s surrender without removing it did not appropriate it to the term; that by law it could only become a part of the freehold and would remain removable until the right of entry of the freehold reversioner should accrue, and hence that the right of removal was subsisting when the bill of sale was made and when the suit was commenced. There is no occasion to spend time in explaining the inaccuracy of this theory, because the facts supposed by it are wanting. There is no evidence. that at the time of the annexation or since, the plaintiffs in error were in as tenants for years. The evidence altogether tends to show they held the freehold. The charge given to the jury was defective and misleading. The fourth proposition applies the doctrine of Adams v. Lee, 31 Mich., 440, that where interests in land and chattels are inconsistent, the chattels must be regarded as preserving their character of chattels. There were no facts to call for any such rule. The record shows no diversity of interest nor any fact •indicating that a conveyance of any share of the realty would not convey a like share of the machine. The jury must have supposed that a state of things existed in regard to the ownership of the mill upon which a question could be made as to the possibility of a permanent annexation of the machine. .There was no attempt to explain the law governing such cases as the evidence tended to disclose. On the contrary, the third request on the part of plaintiffs in error, which was very applicable to the facts, was refused, as was also the first branch of the first request. Both of these should have been given. The machine was a trade fixture, and the general rule is that such chattels become annexed to the real estate: but that the tenant may remove them during his term, but not afterwards, against.the consent of the landlord, and when they have fallen into the landlord’s estate they do. not revest as personal chattels in the tenant in consequence of being severed by the former from their physical connection with the more permanent part of the property. What has been said is sufficient to dispose of all the material questions. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Graves, J. Complainant granted to defendant certain real estate in Chicago in exchange for part of a fruit farm in Berrien county. The original bargain was made in writing in Chicago, and was consummated April 20th, 1875. The premises ,to be conveyed by defendant were described therein as “being the south half of the fruit farm now owned by him in the south half of section thirty-four, township four south, range nineteen west, in the town of St. Joseph, county of Berrien, State of Michigan.” April 24, 1875, the defendant, assuming to adhere to the requirements of the written contract, made a deed, and May 3d caused it to be delivered to complainant. The terms of the description were wholly unlike those in the contract. The premises were described by metes and bounds, and the particulars were long and intricate. No one who had not previously applied the description to the place could gather from it whether it covered the premises identified by the contract or not. Still the deed was given by defendant as answering the same purpose as one containing the contract description, and complainant in good faith received it in the belief that there was no variance in effect. Some time after the conveyance it was discovered by complainant that the bounds given in the deed included forty-nine hundredths of an acre less than half of the farm, and that if the lines were run in such manner as to give her the actual south half they would include a valuable barn, which, as the lines are given in the deed, is left on defendant’s part of the farm. She then filed this bill to compel conveyance of the fraction of an acre with the barn on it, and the circuit court decreed in her favor and the defendant appealed. Complainant is satisfied with the decree as entered. The case will not admit of much discussion. ' The defendant does not claim to have committed any mistake nr to have been defrauded. He deliberately furnished both descriptions. His position is that he did not intend to sell the barn nor the actual south half of the farm, and used the expression “south half” in a conventional or modified sense only, and that complainant in fact received the deed with the description written in it as a grant of the lands bargained to her. There is some evidence in the record that after the bargain was entered into and the parties had become bound by writing the complainant was told by defendant where the lines would run to include the premises as described in the contract, and was further told that the barn would be outside. Admitting this to be good evidence, and still the defense is not advanced. There is no evidence that she then had any suspicion that the description so given did not embrace the south. half of the farm, or that the bam was in fact within and not outside of that actual division. She was entitled to believe that the defendant knew where the lines would run in setting off the south half of the farm, and she was relying on his good faith and accuracy. If his representation was not correct he ought not to profit by it. Certainly he cannot make use of her refusal to assume he was stating what was not true, as an admission that what he said was correct, or as evidence of her acquiescence in the claim that the lines pointed out were in fact just such as the contract meant. The case does not require consideration of the rule which allows surrounding facts to be introduced to assist in ascertaining in what sense ambiguous, equivocal or conventional expressions have been used. Yielding to defendant’s evidence all the force which can be fairly claimed for it in favor of his position, and it is not perceived that it presses at all against the claim of complainant founded on the terms of the written contract. The writing remains the best interpreter of the intent of the parties, and the terms of description which the defendant deliberately furnished do not seem to have been used in a latent sense. We discover no ground for saying that the expression in the contract should not receive its apparent meaning and be construed as binding defendant to convey the actual south half of the farm. Au Gres Boom Co. v. Whitney, 26 Mich., 42; Dart v. Barbour, 32 Mich., 267; Goodenow v. Curtis, 18 Mich., 298. The decree below should be affirmed with costs. The other Justices concurred.

Marston, J. Under the issue as framed in this case, evidence tending to show undue influence was competent and admissible in evidence. The court in charging the jury; being of opinion that upon this branch the testimony did not tend to show undue influence, withdrew that question from their consideration. The answer of the witness Frances A. Estabrook to the twenty-seventh interrogatory was properly excluded. The interrogatory as framed permitted her to base her' opinion in part upon what she had heard within a given time. This it is claimed from the form of the question could only mean and be understood by her as to what she had heard deceased say. The question is not so limited, and she clearly may have understood it in a different sense. Where a'party insists upon an answer to an interrogatory he must see that it is not susceptible of a construction which would enable the witness in answer thereto, to testify concerning matters clearly incompetent, or as in this case to express an opinion, based upon hearsay evidence, the nature or character of which would be wholly unknown. After the evidence was all in, counsel for proponent requested the court to instruct the jury, 1st, “There is no evidence in the case tending to show that the testator when he executed the will in controversy was in any respect of unsound mind, and the jury are therefore bound to assume that he was fully competent to make such a will;” 2d, “Upon the whole case the verdict must be for the proponent.” These requests were refused, and to the charge as given no exceptions were taken. It was not seriously disputed on the argument but that there was testimony in the case tending to show that the testator did not have sufficient capacity to make the will in question. It was, however, urged very strenuously that there was not sufficient evidence, all of which is returned, to sustain the verdict in this case, and consequently that the second above request to charge should have been given. We had supposed that the law was well settled in this State as to the duty of the court under such circumstances. It is true the question may not have been discussed at length, and the authorities bearing thereon cited in any one particular case, but the question has frequently been referred to and acted upon in cases where perhaps, at least in some of them, it was of minor importance. As the question is one of importance in this case, and has been ably argued and authorities cited, more especially the decisions of the English courts and of the Supreme Court of the United States, it may be well to consider the matter at some length and see what the true rule is or should be in all such cases, and in the light thereof determine the controversy in this case. In England the rule is laid down that a scintilla of evidence clearly would not justify the judge in leav ing the case to the jury; that there must be evidence on which they might reasonably and properly conclude that the issue was proven. See Ryder v. Wombwell, Law Rep., 4 Exch., 38, where many of the cases are collected and citations therefrom given. When we turn to the decisions of the United States Supreme Court, it would seem at first view as though the rule there laid down was not uniform, especially as between some of the later and earlier cases. As, however, the earlier eases are cited in support of those later, we think there was no intention to overrule the former, which certainly were very clear upon this question. A brief reference to some of them may be permitted. In Pleasants v. Fant, 22 Wall., 122, the true principle was said to be “that if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury.” In Commissioners v. Clark, 94 U. S., 284, following the English rule, it was said a scintilla would not be sufficient; that “before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed.” In Schuchardt v. Allens, 1 Wall., 369, it was said, “A circuit court has ‘ no authority to order a peremptory non-suit against the will of the plaintiff.’ Where there is- no dispute about facts, and the law arising upon them is conclusive against the right of the plaintiff to recover, it is proper for the court so to instruct the jury. If the evidence be not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly. ‘This is equivalent to a demurrer to the evidence, and such an instruction ought to be given whenever the evidence is •not legally sufficient to serve as the foundation of a verdict for the plaintiff.’ This practice ‘ has in many of the States superseded the ancient practice of a demurrer to evidence. It answers the same purpose and should be tested by the same rules. A demurrer to evidence admits not only the facts stated therein, but also every conclusion which a jury might fairly or reasonably infer therefrom.’ ” In Drakely v. Gregg, 8 Wall., 268, Davis, J. said: “The only question with which we have to deal at the present time is, whether the evidence in this record tended to prove the position assumed by the plaintiffs in error; for if it did, the learned court should either have submitted the evidence on this point to .the consideration of the jury, or if, in the opinion of the court, there were no material extraneous facts bearing on this question, and the contract relied on must be determined by the commercial correspondence alone, then to have interpreted this correspondence and informed the jury whether or not it proved the contract to be of the character contended for by the plaintiffs in error.”. The evidence in this case consisted of a voluminous correspondence, and some parol proof explanatory of the conduct of the parties, and the duty of the court in reference to a construction of the written correspondence, and of the jury as to the extraneous facts were clearly distinguished. In Hickman v. Jones, 9 Wall., 201, the court instructed the jury to acquit the defendants. Swayne, J. said: “ There was some evidence against both of them. Whether it was sufficient to warrant a verdict of guilty was a question for the jury under the instructions of the court. The learned judge mingled the duty of the court and jury, leaving to the jury no discretion but to obey the direction of the court. Where there is no evidence, or such a defect in it that the law^ill not permit a verdict for the plaintiff to be given, such an instruction may be properly demanded, and it is the duty of the court to give it. To refuse is error. In this case the evidence was received without objection, and was before the jury. It tended to maintain, on the part of the plaintiff, the issue which they were to try. Whether weak or strong, it was their right to pass upon it. It was not proper for the court to wrest this part of the case, more than any other, from the exercise of their judgment. The instruction given overlooked the line which separates two separate spheres of duty. Though correlative, they are distinct, and it is important to the right administration of justice that they should be kept so. It is as much within the province of the jury to decide questions of fact as of the court to decide questions of law. The jury should take the law as laid down by the court and give it full effect. But its application to the facts — and the facts themselves — it is for them to determine. These are the checks and balances which give to the trial by jury its value. Experience has approved their importance. They are indispensable to the harmony and proper efficacy of the system. Such is the law.” In Insurance Co. v. Rodel, 95 U. S., 238, Bradley, J. said: “It is hardly necessary to say, that, if there was any evidence tending to prove that the deceased was insane when he took the poison which caused his death, the judge was not bound to, and indeed could not properly, take the evidence from the jury. The weight of the evidence is for them, and not for the judge, to pass upon. The judge may express his opinion on the subject, and in cases where the jury are likely to be influenced by their prejudices, it is well for him to do so; but it is entirely in his discretion.” Assuming that the English rule as already stated, which was followed and approved in Commissioners v. Clark, 94 U. S., 284, means just what is said, that a scintilla of evidence would not justify the judge in leaving the case to the jury, I can fully concur therein. Such a rule would be no more than what has repeatedly been followed in this State. In Kelly v. Hendrie, 26 Mich., 256, it was said: “If, upon any point essential to a recovery, the evidence bearing on it is open to but one meaning, and that meaning is plainly and necessarily adverse to the plaintiff, then he has no ground of complaint” if the court takes the case from the jury. There may be a “scintilla,” in other words a “spark” or “the least particle” of evidence in a case, and yet fall far short of what is essential. It frequently happens on the trial of a cause that proof of one fact has of itself a tendency to prove others which are material and necessary to establish the cause of action, while in other cases each fact is so separate and distinct that proof of one raises no presumption whatever in support of another. As was said in Perrott v. Shearer, 17 Mich., 54, whether evidence bearing upon a certain point tends to establish it or not, may depend not alone upon that particular item of evidence, but upon that considered in its relation to other evidence which may so far qualify and explain it that it shall have no tendency whatever to prove the position for which it was offered, and which if it were the sole evidence in the case it might appear to establish. The duty to examine, weigh and compare in these cases is not entrusted to the judge; these are matters lying within the peculiar province of the jury. In Gaines v. Betts, 2 Doug. (Mich.), 98, it was held that a judgment should not be reversed on the ground that the verdict of the jury was against evidence, unless it appeared there was a total want of testimony to sustain the finding. In Berry v. Lowe, 10 Mich., 15, where the question came up upon writ of error, it was said: “ If the alleged error is a total want of evidence to prove some fact necessary to sustain the judgment, the court will look into the testimony to see whether there was such evidence or not. If there was, it will not weigh it, or inquire into its sufficiency, but affirm the judgment. If the return shows no such evidence, and it appears all the testimony before the justice has been returned, the judgment will be reversed on the ground that the justice erred, in law, in rendering the judgment he did without such evidence.” Or, as was said in Hyde v. Nelson, 11 Mich., 357, where the question came up on certiorari, “It is only when there is an entire absence of proof upon some material fact found, that such finding becomes erroneous as a matter of-law.” The doctrine laid down in these cases has always been strictly adhered to in this State. In addition to the cases already cited, see Blackwood v. Brown, 32 Mich., 107, and authorities there referred to; Maas v. White, 37 Mich., 130, and Elliott v. Van Buren, 33 Mich., 52, where it was said to be “not in the province of an appellate court to consider of the amount of the verdict, or the weight of the evidence. The court of trial may set aside a verdict whieh violates justice, and it is to that tribunal that parties must apply for relief against excessive damages or any other of the wrongs for which it may be right to grant a new trial. We are bound in all cases to assume that the jury have done no legal wrong when acting within their province.” It seems to me that this is the only safe rule. Under our system of jurisprudence, the jury is called to pass upon the facts. It is not only their privilege but their right to judge of the sufficiency of the evidence introduced to establish any one or more facts in the case on trial. The credibility of witnesses, the strength of their testimony, its tendency and t'he proper weight to be given it, are matters peculiarly within their province. The law has constituted them the proper hibunal for the determination of such questions. To take from them this right is but usurping a power not given. The jury should be left entirely free to act according to their own judgment. Where there is a total defect of evidence as to any essential fact, or a spark, the least particle, a scintilla as it is termed, the case should be withdrawn from the consideration of the jury. Where, however, the evidence introduced has a legal tendency to make out a proper case in all its parts, then, although it may in the opinion of the trial court or the appellate court be slight, inconclusive, and far from satisfactory, yet it should be submitted to the jury, whose proper province it is to consider and determine its tendency and weight. When there is a total want of evidence upon some essential fact,.but the jury nevertheless find such fact, the finding is erroneous as matter of law, but when there is slight evidence in support thereof a finding thereon would be one of fact, upon which men.might differ in opinion, but for a court to attempt the correction thereof upon writ of error would be but a correction of errors in fact and not in law, a power which this court does not possess. As already said, it was conceded on the argument that there was some testimony given in this case tending to prove the issue. True it referred to a period some time prior to the time of making the will, yet that did not render it incompetent, but rather went to the effect, or weight and importance to be attached to it. It was proper to be considered by the jury with all the other evidence introduced in the case bearing upon that question. Much other testimony was introduced, — testimony that was clearly admissible as. bearing upon the issue made. It was argued, however, that much of it had no tendency whatever to support the issue; that the irritable disposition and profane language used by the testator did not tend to prove incapacity. There are many people who habitually indulge in the use of profane language, and should they abstain .therefrom for any definite length of time, it would be considered as something remarkable indeed, while there are others of a mild, gentlemanly disposition, who were never heard to utter a profane word or supposed by any to harbor an unclean thought. Should such an one become irritable, morose, and addicted to the use of profane language, and especially at times and on occasions when no cause or provocation had been given, would not such a change be considered passing strange indeed, and might it not when considered in the light of other circumstances, indicate quite clearly a deranged state of mind? All these things were proper arguments to be addressed to and considered by the jury. The same facts which might in one case tend to prove insanity might in another have no such tendency, and no court could lay down or would attempt to lay down a rule that should govern all such cases, as to what did or did not tend to prove insanity. We are of opinion that there was evidence in this case which tended to prove-the issue made. The weight and effect thereof was rightly left, to the jury under proper instructions, and their finding we have no power to review. The proceedings must be affirmed. The cause, however, was properly brought into this court, and the costs should be paid out of the estate in all the courts. It must be certified accordingly to the circuit and probate courts. The other Justices concurred. The twenty-seventh interrogatory was as follows: “ Taking into consideration his appearance, his manner, his actions, his conversation with yourself and with others, and from every thing else you saw or observed of him, or heard between his arrival from California and his leaving for Detroit, state what at this time was, in your opinion, the mental condition of Mrth A. McDonald, sound or unsound?” The response of the witness in her deposition was “Sound.” The interrogatory was objected to on the ground that it called for an opinion not only from what the witness herself saw and heard, but from what she heard from others. The objection was sustained and exception was taken to the ruling.

Marston, J. Marsh brought ejectment to recover a strip of land eighty-one and a half feet wide, and obtained a judgment therefor. From the findings of the court it appears that Stewart and Ives were owners of a certain block of land; that by a written contract they sold two acres thereof to John Daily in 1857, and that Stewart, for the purpose of determining and locating the eastern boundary of such two acres employed a surveyor named Yates, who made a survey and located the eastern boundary, and that Daily immediately went into possession of the land thus located and has continued to occupy and improve the same. Also that Daily and Stewart, being doubtful as to the correctness of such survey, employed one Coffin-berry to resurvey the said two acres, which he did under the direction of Stewart, and he located the eastern boundary where Yates had located it. In 1859 Stewart sold to Daily one acre of land in said block immediately east of and adjoining his first purchase of two acres. Stewart and Daily again employed Coffinberry, who surveyed the same and located the east line of this acre, and Daily immediately built a fence thereon and has since occupied it; that this fence is still standing and has ever since been recognized by Stewart and Ives and those claiming the adjoining lands under them as the boundary. The legal title to this block afterwards passed to Stewart, and he in December, 1864, conveyed to Daily, describing the lands by metes and bounds, two acres, which Daily accepted, supposing it to be a conveyance of the two acres which he was in possession of under the contract and Yates and Coffinberry’s survey. As a fact, however, this deed described the land as commencing at the southwest corner of a certain government survey and following the government lines on the south and west, which were two rods south and two west of the south and west sides of the block. In December, 1864, Stewart conveyed to Stephen O’Brien all of said block, except the two acres sold Daily, and March 25th, 1872, O’Brien conveyed to Daily, by metes and bounds, the one acre which the latter had contracted for with Stewart. In this deed the land was described as commencing at a certain point, being the southeast corner of lands theretofore deeded by Stewart to Daily, and this was accepted by Daily under the supposition that it properly described the one acre which brad been surveyed and taken possession of and fenced by him under his contract with Stewart. February 24th, 1869, O’Brien conveyed to David J. Dean the entire of said block, except the three acres previously sold to Daily. At the time this conveyance was made, Dean knew where the eastern boundary of Daily’s land was, as surveyed by Coffinberry, and as fenced and occupied by Daily. Dean at once went into possession under his deed from O’Brien, furnished material and assisted in building a fence on the line as established by Coffinberry between Daily and himself. June 21st, 1869, Dean conveyed to Patrick Fahey, the defendant in this case, plaintiff in error, one acre, describing it as commencing at the northeast corner of certain three acres heretofore sold to John Daily and now occupied by him, and the day before this conveyance was made Dean and Fahey went upon the premises and Dean then and there pointed out the east line fence of Daily’s land as the west line of the acre to be sold defendant, and stated about how far defendant’s east line would come. In April, 1870, defendant had his acre surveyed, assuming that Daily’s east line fence was correct, and defendant then built his east line fence. Dean saw defendant build the fence, but made no objection. December 14th, 1870, Dean conveyed to John Hefferman a certain tract, excepting four acres off the west end thereof, intending to convey the whole of block 36, excepting the westerly portion sold to Daily and Fahey. June 7th, 1871, Hefferman sold to the plaintiff Marsh, by a similar description. In May, 1876, plaintiff caused a survey to . be made for the purpose of ascertaining the boundary line between himself and Fahey. In making this survey the surveyor first surveyed out Daily’s three acres according to the description in his deeds, which, as already said, included two rods on the south and two on the west, not included in the block nor in the first survey, as made by Stewart and Daily, and in this way moved westerly Daily’s east and west line and consequently defendant’s lines, which gave rise to this controversy. It seems clear from the finding of the court that in the written contract from Stewart to Daily of the two acres, and the survey thereof under their direction and possession taken thereunder, the clear intention was not to include the two rods on the south and west sides of the block, but that Daily should have two acres within the block, and all subsequent sales and surveys were made upon the correctness of the survey and possession taken by Daily under such survey. How the mistake came to be made in the deed to Daily, if it were such, or the land to be differently described, we need not inquire in this case. The court finds that Dean, before he sold to defendant, went with him upon the lands and pointed out to him Daily’s eastern boundary fence as the true line, and agreed to sell defendant one acre next east thereof, and in the deed to defendant the land was described as commencing at a certain point in “the northeast corner of certain three acres of land heretofore sold to John Daily, and now occupied by him, running thence south along said John Daily’s east line to the south line of said section No. twenty,” etc. Under such circumstances, whether the eastern boundary of Daily’s land was correct or not, we are of opinion that as between Dean and Fahey it was accepted and agreed on as the western line of the acre to be sold, and which was sold and conveyed to the defendant. The land sold, and as described in the deed to defendant, was bounded on the west by the east line of Daily’s three acres, “now occupied by him.” So that whether the line of Daily’s land, as then occupied by him, was too far east or not, so far as this defendant and Dean were Concerned, and those claiming title to the remainder of the block through Dean, was a matter of no sort of consequence. Not only was this eastern line of Daily’s land, as then established and occupied, pointed out and agreed upon by Dean and Fahey as the western boundary line of the acre which the former was to convey to the latter, but it was so actually described in the deed. It requires no argument to show that a supposed mistake as to Daily’s line, and a removal of the same farther west, afterwards made, could in no way injuriously affect defendant or change the location of the particular acre of land actually sold and conveyed to him. His particular piece of land was fixed and made certain by Daily’s east line as it then stood, and a subsequent change thereof could not affect defendant. The judgment must be reversed with costs, a judgment rendered in favor of the defendant, and the record remanded for farther proceedings under the statute. The other Justices concurred.

Marston, J. The only question presented in this case is as to the sufficiency cf a description of certain oxen in a chattel mortgage, which had been duly filed, as against one claiming to be a subsequent bona fide purchaser. The description was: “all the cattle, consisting of two yoke, aged six and seven years, color, red, white and blue * ■ * and all other property now in our possession in or about said village,” etc. This clearly must be held a good description within the rule laid down in Farwell et al. v. Fox, 18 Mich., 169; Willey v. Snyder, 34 Mich., 60. It was not necessary that the full description as given should apply to each ox. The judgment must be reversed with costs and a ;new trial ordered. The other Justices concurred.

Cooley, J. The bill in this case seeks the foreclosure of a certain mortgage given by Andrew and Orrin D. Garrison to John Garrison, the payment of which had been assumed by the defendant Charles L. King. A formal discharge of the mortgage had been given by Orrin F. Howard, the first administrator on the estate of John Garrison, bnt he died soon after, and the complainant having been appointed administratrix de bonis non, filed this bill. The bill alleges that the discharge of the mortgage was obtained by fraud, and on the payment of less than was at the time owing upon it. We have no doubt the latter allegation is true, and that the former is baseless. The reason why Howard delivered the discharge without receiving full payment is not made perfectly certain by the evidence, but there is reason to believe that it is to be referred to a mere error in calculation originating in the adoption of an erroneous rule for computing interest. It is not a matter of course to overhaul errors of that sort, and the courts would be kept very busy if they should attempt to correct them all. In this case after allowing a receipt which was disputed, but which we think sufficiently proved, the amount unpaid is something less than seventy dollars. It is not entirely certain that Howard could have enforced payment of this sum had he attempted it. There was a provision in a contract between the mortgagee and King when the latter bought, referring to the mortgage in suit, that the mortgagee should forbear collection until a certain prior mortgage to one Smith, which the mortgagee had agreed to remove, should be discharged; and it appears that this was left undischarged for several years. His right thus to leave that mortgage undischarged, and to collect interest on his own in the meantime, was not so plain that it might not well have been disputed, and without undertaking to say that King might have'made a good defense at law, we are of opinion that there are no equities in favor of the John Garrison estate which could justify opening the case to further controversy by setting aside the discharge. The decree is affirmed with costs. The other Justices concurred.

Campbell, C. J. Suit was brought by the bank on three negotiable promissory notes of $500 each, made at three months each, on April 5th, May 10th, and June 9th, 1876, by the Daniels Italian Marble and Burial Case Company to the order of seven persons of whom plaintiffs in error formed a part. These notes were given to raise money for the marble company, and were originally endorsed by nine directors. Stewart’s name was signed last on each one, but all three were signed at the same time though dated at different times. After the first note had been negotiated at the bank an arrangement was made with the bank’s consent whereby two of the endorsers named Baer and Greib were allowed to have their names erased, on making certain arrangements with the marble company. The second and third notes were negotiated after the names were erased. All the endorsers but Stewart were direct parties to this agreement. There was evidence that he was informed of it before the two latter notes were negotiated, and that he recognized his liability and dealt with the bank on the basis of responsibility. On this there was conflicting testimony. The jury found expressly that he consented and admitted an unqualified liability. There was testimony authorizing this finding, and unless there were erroneous charges there can be no doubt of his having become bound by the endorsement. His consent was a very clear ratification, and as to the two latter notes, being given before the notes were put in circulation, it was really an antecedent authority. The court charged that unless the jury had clear and convincing proof that Stewart since the alteration, with full knowledge of it, had acknowledged his liability, there could be no recovery against him. There is no authority that we are aware of, requiring such consent to be in writing. The doctrine on this subject is recognized in Parsons v. Dickinson, 23 Mich., 57. All of the other objections are rendered unimportant by the special finding except one, which is erroneous. The judge charged that the defendants were absolutely liable as makers whether there had been any dishonor and notice or not. This was not a correct charge. The parties sued were persons named as payees in the note which was payable to their order and endorsed. There is no rule which makes them liable except as endorsers, and no authority has been cited in any way favoring such a notion. The law has been uniform on this subject. No evidence of notice of dishonor or of timely demand is set forth in the record, and this charge may have led to a wrong verdict. Judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Cooley, J. Defendants in error are produce brokers and commission merchants in the city of Detroit, doing business under the copartnership name of J. H. Wendell & Co. Plaintiffs in error are dealers in produce, among other things, at Owosso, Michigan, under the firm name of Gregory & McHardy. In April, 1877, Gregory was at the office of Wendell & Co. in Detroit, and made an arrangement for the purchase by Wendell & Co. for them, of twenty thousand bushels of corn on the Chicago market, for delivery in June. In pursuance of this arrangement the firm of Cooley & McHenry, produce brokers in Chicago, were at once by telegraph, as is claimed, directed to make the purchase, and they made it on the same .day, at a fraction over fifty-nine cents a bushel. On the purchase, Wendell & Co. received from Gregory & McHardy one thousand dollars for “margin,” and the price, except as to this, remained unpaid. The price of corn declined from the time of purchase, and on May'18, Gregory & McHardy decided to sell, and the Chicago brokers made sale at a net loss of $1,689. Three days previous to this Wendell & Co. had bought for Gregory & McHardy ten thousand bushels of com through Erskine, another broker, and on May 18th they bought twenty thousand bushels through Cooley & Mo-Henry. These purchases were made at a little over fifty-four cents, for July delivery. After these last transactions the price of corn continued to decline, and on May 21st Wendell & Co. wrote Gregory & McHardy a letter from which the following is extracted: “ Gents : — We find on figuring up your Chicago deals that you are short of margins some $600, and this is after taking balance of account, and giving you credit for the two cars of wheat at about to-day’s prices. Will you send a draft for the amount, or shall we draw ? Our Chicago parties make prompt demands on us, and we in consequence have to keep dealers well up.” No reply was made to this letter, nor to a letter and telegram on the same subject, three days later. May 26th, without orders from Gregory & McHardy, Wendell & Co. sold the contracts for July delivery at a large loss. When this sale was reported to Gregory & McHardy, the latter placed the matter in the hands of their attorney, who under date of June 5th wrote Wendell & Co. as follows: “ Gentlemen : — I am instructed by Gregory & McHardy to say that as you have sold, according to your statement, the corn which you profess to have held for them, thus rendering it impossible for you to fulfill the contract on your part, they will treat it as at an end, and hold you responsible for the amount paid you.” Immediately, and on the same day, Wendell & Co. replied, addressing their reply to the principals: “Gentlemen: — As you fail to notify us that you are satisfied with our action in making sale of the corn heretofore purchased by us for your account for delivery in July, you are hereby notified that we shall hold ourselves in readiness to deliver such corn to you at the time you become entitled to such delivery by the terms of your order to purchase.” At the same time they ordered the purchase of thirty thousand bushels of corn in Chicago for July delivery, and the purchase was made. July 2nd, 1877 Wendell & Co. caused Chicago elevator receipts for this amount of corn to be tendered to Gregory & McHardy at Owosso, and demanded payment for the corn at contract prices, which was refused. They thereupon sold the corn at a net loss, measured by the May purchases, of $2,071.75, and seek in this suit to recover the losses on the two transactions, after deducting certain credits which are not now in question. The controversy in the court below was mainly over two questions: First, Whether the transactions out of which the suit sprung were not mere gambling transactions, and therefore opposed to the policy of the law, and incapable of affording a ground of action; and second, Whether plaintiffs, by making sale of the July contracts in May, had not, as the letter to them of defendants’ attorney assumed, put it out of their power to perform on their part, and thereby discharged the defendants. Certain collateral questions bearing upon these were also raised, and some questions of evidence which will be referred to further on. Defendants in the court below undertook to establish that the transactions between the parties never contemplated any actual sale or delivery of corn; that the supposed contracts were in the nature of wagers on the rise' or fall in the price of corn between the respective days of purchase and the times when the nominal purchasers would receive delivery if the contracts were performed; that the unexpressed purpose was that the contracts should be closed only by the payment of differences, and that for these reasons it was not, and was never intended to be a legitimate business transaction, but was wholly illegal and void. Another branch of the same litigation was before this court at the October session thereof in 1878, and it was then declared that if these were purely gambling transactions, and so understood by both parties, neither of them could maintain an action against the other in respect to them. Gregory v. Wendell, 39 Mich., —. A like doctrine was laid down in Lyon v. Culbertson, 83 Ill., 83, and in other cases cited further on. But this court also held that if the parties contemplated an actual purchase of corn, and acted in good faith in making such purchases, the fact that speculation was the object was of no legal importance whatever. Mr. Justice Marston, who wrote the opinion, did not dwell upon this point, but the right to buy grain in the open market in the hope to profit by a rise in market value, is as plain as the right to buy wild lands or any other property, and required no elucidation or special examination at the hands of the court. Neither can any question exist that if one party to a transaction contemplates an actual purchase, or the other an actual sale, the transaction may be perfectly valid irrespective of any illegal views or purposes that may have been indulged by, the other. This makes the question of the legality or illegality of a transaction, as we held in the former case, a question of fact depending on the intent; and as such it was-treated by the parties on the trial of this case at the circuit. If there is a right to purchase produce on speculation, it may be purchased for future delivery; and this, though at the time the seller may have none to deliver. Cassard v. Hinman, 1 Bosw., 207; Ashton v. Dakin, 4 H. & N., 867; Brua's Appeal, 55 Penn. St., 296; Pixley v. Boynton, 79 Ill., 351. But in this case it was denied that delivery was ever contemplated. The defendant Gregory testified that in the dealings with Wendell & Co. the transaction was talked about and understood as a mere speculation, to be closed up without the delivery of any corn under or because of the nominal purchases. Mr. Clark, on the other hand, the member of the firm of Wendell & Co. with whom the negotiations were had, testified that while the talk and expectation was that Gregory & McHardy would order the corn sold before the time for delivery came, yet that the plaintiffs expected to obtain title to the com for delivery at the maturity of the contracts .if not disposed of sooner. On cross-exami nation Mr. Clark was asked if he had ever, on any such dealings, received any corn. The question was objected to and ruled out. Had the question been allowed, and had a negative answer been given to it, it would have been said that the answer gave support to the evidence of Gregory, where it conflicted with that of Clark, since it must be altogether' improbable that in this instance something different was contemplated from any thing which had ever taken place before. We are inclined to think, however, that the court was right in overruling the question. Had there been a series of gambling transactions between these same parties, and had the question related to them, it might have been proper, because the inference that a continuance of the like dealings was contemplated would have been legitimate and forcible. But there had been no such transactions; and it would be very dangerous to permit the previous illegal conduct of one party to be proved as the foundation for an inference that a new dealer contemplated the like illegality. On the face of the transaction the contract was perfectly good and lawful; it could not have been a gambling contract unless both parties participated in the illegality by uniting in the intent; and where apparently the contract is good, the right of either party to an enforcement cannot be taken away except by showing concurrence in the unlawful purpose. If either party meant it as a lawful and legitimate transaction, it must be held to be lawful and legitimate. If the purposes of defendants were to engage in genuine dealings in this instance, the right of Wendell & Co. to enforce the contract would be complete, even though they had never engaged in a like transaction before; for gamblers may make lawful contracts as well as others. If a miller from the interior of Michigan were to go to Chicago and there request a produce broker who for a series of years has been engaged in gambling transactions in grain, to purchase for him ten thousand bushels of wheat for future delivery, contemplating at the time an actual receipt of the grain for business purposes, would it be claimed that the broker, in defense to an action for non-delivery, might prove that he had never previously made delivery of grain so purchased, and thereupon argue that it must be inferred the parties contemplated no delivery in this instance ? And if he might not give such proof in an action against him for nonperformance, on what ground could the miller be' suffered to give it, by way of defense to an action for refusing to receive the wheat when tendered? It seems to us that these questions require no discussion. The illegal intent that shall defeat the contract must be the common intent of both parties; and if either has a lawful and legitimate purpose in making the contract, or if he supposes the other to have, and contracts with him on that supposition, his right to recover upon the contract after performing or tendering performance must be clear. If a contract on its face contemplates illegal dealings, no question of intent can be open as a question of fact. But this contract was not one of that sort. It was perfectly legitimate on its face, and apparently contemplated nothing which was opposed to any principle or policy of the law. Now, if such a contract is susceptible of being carried out in a lawful way, without conflicting in any manner with any common intent which is shown to have been indulged or held by the parties at the time the contract was entered into, we discover no ground on which it can be held to be invalid. It .is not enough to defeat it that it is susceptible of an illegal use, or that one of the parties to it may have contemplated and designed such illegal use, if the other had a right to suppose under the circumstances that the contract was to have effect according to its apparent and lawful construction. This is the view expressed in substance by the Kentucky Court of Appeals in Sawyer v. Taggart, Chicago Legal News for 1879, p. 133, in an able opinion by Mr. Justice Cofer. In this case the parties were at variance respecting what took place between them in the course of the negotiations preceding the contract, and the question in dispute upon their evidence was fairly submitted to the jury as one for their determination, and was found for the plaintiffs. Upon the facts, therefore, the transaction is found not to be opposed to the policy of the law. But the defendants further insist that, under the arrangement as sworn to by Mr. Clark, Wendell & Co. were their agents, and if as such agents they bought corn, it was their duty to make a valid agreement with some one, on behalf of their principals, for the delivery of corn; — an agreement in legal form and capable of being enforced against the actual vendor. If they ever did make such an agreement, it is said, it must still be outstanding in the hands of the man with whom they or their correspondent made it, and it is to him that defendants must respond, and not to these agents. A suit by Wendell & Co., whatever its result, could not bar the demand of an actual vendor against these defendants as actual vendees; and therefore under any view of the facts this suit is not maintainable. The proposition that Wendell & Co. were to be regarded as agents merely, authorized as such to negotiate certain sales to these defendants, is one that at first blush seems unquestionable. There is no doubt Wendell & Co. were agents: they tvere to buy for defendants, and they were to receive a- commission for buying. As agents they made purchases through Cooley & McHenry, which were entered on the books of the latter firm, and also through Erskine. But this is not a complete statement of the case. If defendants must have contracts with those who were the actual sellers, it is necessary to look further; for Cooley & McHenry and Erskine were only the correspondents of Wendell & Co., and bought for them of third parties. There were thus two intermediate parties between the vendors and the vendees, and the ultimate parties were probably wholly unknown to each other. The transactions were entered on the books of the intermediate parties, and as the evidence showed, they accounted to each other as debtor and creditor in respect to them. There is in all the evidence no intimation that the sellers looked for any purpose beyond the brokers who bought of them, namely, Cooley & McHenry and Erskine, or that defendants looked or expected to look beyond their immediate brokers, Wendell & Co. The intimation that Wendell & Co. were agents exclusively, and had not fully performed their duty as such until they had presented actual contracts with actual sellers, is evidently not in accord with the understanding of the parties. Ho doubt the transaction may assume such a phase that the broker must be regarded as an agent merely. If he merely makes the purchase with the understanding, expressed or implied, that the contract is to be at once turned over to his principal, and this is done with the knowledge and consent of the Seller, the broker’s connection with the transaction will then have ceased, and if his commissions are paid, the principal will no longer have claims upon him in respect to it, nor he upon the principal. The buyer and seller will then be relieved of intermediate parties, and must look to each other exclusively for the performance of their respective obligations. And no reason is perceived why, at the election of the purchaser, the transaction may not be made to assume this form in every instance. As a matter of course in such case, the seller, when turned over to a purchaser who may be unknown to him, would be entitled to demand full payment at once, or to be protected by payments as “margins” or otherwise, in ways that he might not have required of the broker through whom the transaction was effected; but if payment is made or the demanded protection given, he cannot object to being turned over to the purchaser himself as the person with whom he must subsequently deal. But this is not the phase the transaction commonly assumes. ' The dealings are generally left in the hands of the broker himself until the transaction is fully closed, and we hazard nothing in saying that under such circumstances the buyer and the seller never have an understanding that they are to look to each other as the responsible parties, and not to the intermediate brokers. The buyer in the inferior of Michigan knows nothing about the broker in Chicago, and does not trouble himself with the question of his responsibility. He goes to his own broker, in whose responsibility he has confidence, and deals with him, expecting that he will see to the closing up of all transactions. He would be somewhat astonished if his broker were to say to him: “My Chicago correspondent has made a purchase for you from some broker 1 do not know, and I will take your money and deliver to you in place of it the agreement of this broker that he will deliver you corn upon it at a future day. He may fail, but if he does, that is your loss, not mine.” Few men would choose to speculate in produce on such terms, and fewer still of the millers in Michigan would purchase grain for future delivery, in Chicago or elsewhere, as they do on occasion now. The implied understanding in all cases where the purchase and sale is intrusted to the broker is, that the purchaser looks to his broker, the broker looks to his correspondent, and the latter looks to the party who sells to him. If one desires to purchase grain for future delivery, his .broker orders the purchase, but the transaction is represented on the books of dealers, and not by written contracts. The purchase now, when the grain is to be delivered in the future, is not for the purpose of having the quantity set apart to await the time, but it is to fix the price which the purchaser is to account ■for when the transaction is closed. It is never expected that during all the time intermediate the day of purchase' and the day of delivery an amount of grain correspond^ ing to the amount bargained for, will lie in the ware house awaiting the maturity of the contract; but the transaction, though called a purchase, is rather an agreement for future delivery, which the broker is to see is settled when the time arrives, unless it shall previously be disposed of under the orders of his principal. The casos in which vendors and vendees elect to relieve the transaction of intermediate parties and look to each other exclusively, must be altogether exceptional. If a buyer for future delivery must be understood as dealing with the party who sold to his broker’s correspondent, then defendants were consistent and logical in insisting, after Wendell & Co. had sold the July contracts without orders, that no other contracts could be substituted for those so disposed of. No man can be compelled against his will, to accept another contracting party in place of the one he has dealt with, even though a contract with such other party may be equally valúa, ble, and in its results exactly the same. But it cannot seriously be pretended that these defendants expected and understood they were to look to all the several parties from whom Cooley & McHenry and Erskine had bought corn on their account, instead of looking to Wendell & Co., in whose hands they had left the dealings; While they might have required actual contracts from actual sellers, they chose, instead of doing so, to deal exclusively with the parties they knew.- And under these circumstances Wendell & Co., who had assumed responsibilities and paid out moneys in carrying out their directions, were entitled to complete the transaction at the proper time by making delivery. ■ '' It is said that this view puts the plaintiffs in .antagonistic positions; that it makes them buyers as agents for defendants, and sellers as principals to defendants of the same property; but this is not strictly accurate. They indeed bought as agents, but for their own protection they had the right to make delivery on the purchases, and the • implied undertaking of defendants was to receive delivery at the maturity of the contracts unless before that time they disposed of their purchases. Had the purchases of corn been for immediate delivery, it would then have been the duty of plaintiffs to put themselves in position to make immediate delivery when defendants called for it, — not that they would have been obliged to deliver exactly the same corn which they had bought for defendants (Nourse v. Prime, 4 Johns. Ch., 490: s. c. 7 Johns. Ch., 90; Horton v. Morgan, 6 Duer, 56: s. o. 19 N. Y., 170), but they must deliver, or hold themselves in readiness to deliver, an equal quantity of the same in kind and quality. Had they under such circumstances disqualified themselves by sales from delivering the requisite quantity on demand, the purchasers might either treat this as an unlawful conversion of their property and claim damages, or they might repudiate the sale and demand the corn. Taussig v. Hart, 58 N. Y., 425. In the case now before us the defendants neither affirmed the sale made on May 26th nor repudiated it, but they planted themselves on the ground that the sale rendered it impossible for plaintiffs to complete the contract, and therefore discharged the purchasers from all obligation. This of course assumes either that defendants were entitled to particular lots of corn,— which cannot for a moment be pretended, — or to particular contracts for the delivery of corn; and if we are right in what has already been said, this last position is equally untenable with the other. No more depended on identity in contracts than on identity in kernels of corn. Wendell & Co. having bargained for the future delivery of corn to defendants, under their instructions, and having incurred liabilities in so doing, were entitled to require of defendants the fulfillment of the contract on their part; in other words, were entitled to require them to accept delivery and make payment. Complaint is made of the rule of damages laid down by the court in respect to the refusal of defendants to receive delivery of the corn tendered to them in July. It was said that as plaintiffs sold out the July corn in May, their damages must be the difference between the purchase price and the price then obtained. But as that sale did not bind defendants, and they refused to recognize it as one made on their behalf, plaintiffs were compelled, for their own protection, to put themselves in position to fulfill in July, and when they did so by a new purchase, the May sale became wholly immaterial. Of as little force is the objection that the elevator receipts, which were tendered to defendants at Owosso, were not shown to have belonged to plaintiffs. The evidence was satisfactory that they were such receipts as the corn would have been delivered upon, had the bearer presented them. The defendants could demand nothing more. The substance of the arrangement between these parties may be stated in few words. Plaintiffs were to bargain for a certain quantity of com at the then ruling prices in Chicago, deliverable there in July following, and defendants were to pay them a commission for making the purchase, and also to receive the corn and pay the price at the time of delivery, unless they should dispose of the contracts sooner. Plaintiffs had a like agreement to receive the com from Cooley & McHenry and Erskine, and these persons from those of whom they bought. It was shown by the plaintiffs that they settled for the purchases with the brokers with whom they dealt, and when they then tendered to defendants receipts representing the requisite quantity of corn in the elevator at Chicago, they had done all that the arrangement required of them, and if defendants refused to receive the com, or the receipts representing it, plaintiffs were entitled to sell it for their own indemnity and to recover for any deficiency. Some subordinate questions growing out of rulings in the receipt of evidence require brief notice. As a part of the evidence of actual negotiations between the parties in Detroit, and of actual purchases by Cooley & McHenry in Chicago, made for plaintiffs on account of defendants, certain messages which had been delivered to plaintiffs, and which purported to be telegrams which had passed between the parties in Chicago and Detroit, were produced and received in evidence under objections. The' objections to some of them were that they wore not originals, and that even if they were, they could not prove purchases and sales, but would be. mere hearsay. Of one it was said there was no evidence that it was ever sent; the proof being merely that it was taken to. the telegraph office and delivered to an operator. But so far as these telegrams related to the transactions between Wendell & Co. and Cooley & McHenry, they seem to us unimportant. Independently of them it was shown that after plaintiffs and defendants came to an understanding at Detroit as to what should be done in the purchase of corn at Chicago, the understanding was immediately carried out by Cooley & McHenry at the place of contemplated purchase, in pursuance of supposed instructions. This was the important fact; and even had it turned out that the supposed telegrams were mere copies,' that circumstance would in no way affect the purchase.1 The substantial. fact would remain that purchases and sales were made in pursuance of the arrangements, and for which there must in some form have been directions. The purchase of ten thousand bushels of corn on May -15th for July delivery was supposed to have been made through Erskine. The evidence of his having made the purchase consisted in what purported to be a telegram announcing it, and two letters in which he notified Wendell & Co. that he had drawn drafts on account of that and other purchases. It might perhaps be a serious question whether these, standing alone, would establish the fact that such a purchase was made; but as plaintiffs immediately reported it, with price, to defendants, and received in reply a letter of approval, a contract between them was sufficiently made out. Plaintiffs must be understood to warrant the genuineness of a transaction between themselves and their correspondent, on which they lead another party to rely; and had defendants called upon them to turn over a valid contract, or to deliver the corn at the proper time, they would not have relieved themselves from responsibility by showing that the telegram was fictitious. And if they were bound, so were the defendants. We find no error in the record, and the judgment must be affirmed with costs. The other Justices concurred.

Graves, J. This case comes up on exceptions before judgment. The defendant was convicted in the Recorder’s court of the city of Detroit, on a charge of stealing sixty-four dollars from the store of Oren T. and Alvin N. Sabin in the day time. The money was kept in a cigar box in a vault in the office. There was evidence that Oren T. Sabin was alone in the office shortly before noon, and that a young man between fifteen and twenty years of age entered and desired -to get change for a -five dollar bill; that Sabin opened the vault and took out the box for the purpose of giving the change, when the young man remarked that the change was not such as he wanted, and passed out; that Sabin restored the box to the vault, and closed the safe door and turned round to go again to his desk, and at that moment the defendant stepped in and stated to Sabin that he wanted to buy ten barrels of flour; that the latter then showed defendant samples contained in boxes in the office, but he desired to see it in the barrel; that they then went back into the warehouse, where Sabin unheaded a barrel, he at that time being with his back towards the street entrance, and defendant facing it and in a position to see any one entering from the street to go to the office; that at this time one Dubois entered and told Sabin he had better look into his office and see if every thing was right there, and that Sabin went immediately to the office and discovered that the cigar box containing the money had been taken from the vault and carried off; that Dubois then explained that he saw a young man leaving the office carrying under cover of a silk handkerchief something like a cigar box, and that Sabin on getting this information joined with Dubois in making a hasty search for the young man, but without success, and in the meantime defendant went out. This statement sufficiently unfolds the transaction for the present purpose. It has not been claimed that defendant took the money in person, but the theory of the prosecution at the trial was, and is now, that the young man referred to was the actual perpetrator of the theft, and that- the defendant was present as an active accomplice, co-operating in the offense, and the case was conducted throughout in the court below according to this view. On the cross-examination of the witness Sabin, he swore that he had formerly been a member of the firm of Granger & Sabin, bankers, at Detroit. Defendant’s counsel then asked this question: “Did you not, while a member of that firm, extract from an envelope securities which were left in your vault for safe keeping, and use their proceeds in stock speculations in New York?” The court on the unexplained objection of the prosecuting attorney refused to allow the question. We think this ruling was not well advised. It was important for the defendant that the jury should be informed as far as practicable, without infringement of the rules of law, in regard to the moral character and antecedents of the witness, and the question was designed to elicit such information. No doubt the witness might have declined to answer under the acknowledged rule, that no one can be compelled to criminate himself. But this is matter of personal privilege which a witness may waive,, and is not a ground of objection by the people, and here the witness did not object, and we cannot assume but that he was not only willing, but desirous to answer. There is another consideration not to be overlooked. The defendant was entitled to satisfy the jury, if he could, that the witness and not himself was in league with the active thief, and was the true accomplice, and in that view the evidence called for by the question had some pertinence. It may be said that any defense of that kind was too improbable to be countenanced. A court cannot deny opportunity to raise such a defense upon any. personal assumption in regard to the character of the person who may be incriminated, and the accused, we think, had the undoubted right to be heard upon the theory mentioned. The defendant made his statement to the jury, and among other things, to explain how it happened that he was in Detroit and went to inquire about flour at Sabin’s, he stated that he lived at Cleveland, Ohio, and had been engaged there in shipping cheese to Chicago; that a few days prior to the theft in question, a Mr. Foster, from Buffalo, called upon him to get him to buy apples in Michigan; that being called to Chicago on business, he returned from there through Michigan as far as Detroit, making inquiries on the way about apples; that he reached Detroit on the first of October, and the next day received a letter from his cousin, who was head book-keeper in the firm of Chandler & Sons, on Ontario' street, Cleveland, asking him to make inquiries at Detroit about flour; that on the 8d of October, the day of the larceny, he visited several establishments and inquired about prices, and finally went to Sabin’s for the same purpose. Defendant neither procured the attendance of his cousin from Cleveland or of Foster from Buffalo as witnesses in his behalf, nor made any attempt, so far as appears, to obtain their depositions. When the prosecuting attorney came to argue the ease to the jury, he contended that the fact that the defendant had not produced his cousin and Foster as witnesses, nor any other business men to show his business to have been as he had stated, proved that his statement in regard to such matters “was a lie.” The defendant thereupon requested an instruction, among others, that no inference against the defendant could be drawn from his not having brought witnesses from other States; that his not obtaining such witnesses might be owing to many causes beyond his control, and that no unfavorable presumption could be indulged as a consequence of his not getting them. The instruction was refused, and after referring to the rule that the' failure to produce evidence in the power of a party is a circumstance to be considered by the jury, and after noticing the provision allowing the defendant in a criminal case to obtain the testimony of foreign witnesses by commission, the judge after some further explanation, left it to the jury to infer, from the failure of defendant to produce the witnesses from Buffalo and Cleveland, or their testimony, that his own statement as to transactions with them was wholly untrue. In view of the course of argument adopted by the prosecuting attorney, and the request by defendant’s counsel, and the actual instructions, there is ground for thinking the jury were misled. It was natural for them to construe the charge as amounting to an opinion of the judge that the statement might be set aside, not because it was in itself improbable or overborne by evidence of superior value, but solely because the defendant had not adduced cumulative evidence, or additional or other testimony to the same points. Now the statement of a defendant on his trial on a charge of crime is in the nature of evidence, and is required to be submitted to the jury as of that character, and there is no authority for saying a jury may not receive it and act upon it even in case the facts related or some portion of them are not supported by the testimony of witnesses. The law allows such weight to be given to the statement as the jury consider may be due to it, and it cannot be assumed by the judge, on submitting it, that it is not to be believed; and hence it is not competent to lead the jury to suppose they may reject the facts given in the statement simply because .they are not proved by others. The conviction must be reversed, and a new trial ordered. The other Justices concurred.

Graves, J. This certiorari is brought to review proceedings by a township drain commissioner. The record charges many errors, but only one ground of complaint will be specially noticed. Several objections are unimportant, and one defect which plaintiff’s counsel suggested when the case was submitted is, not alleged as error. The drain commissioner was unable to obtain conveyances of the land necessary and releases of damages and was hence compelled to call a jury or obtain the appoint, ment of commissioners. He elected to apply for commissioners, and June 17, 1878, the judge of probate appointed them. They were sworn, and on the 3d of July, 1878, they made their written determination, which, with other proceedings, was filed with the township clerk July 19. Throughout these proceedings the ditch is described only as a line. In no place is there any description of its “width and average depth.” So far as appears the special commissioners had no knowledge of the required dimensions and no means of judging how much land would be needed at any point, or the amount of expense to be incurred, or of the benefit or injury to individuals so far as it would depend upon the size and depth of the ditch generally or in localities or of the necessity for the “good of the public health,” in so far as that might turn upon the extent and features of the designed improvement. In Kroop v. Forman, 31 Mich., 144, this subject was referred to. But defendants’ counsel observes that the amendment of 1875 has made that case inapplicable and has removed all necessity for specifications in the proceedings or in the record or for any thing more definite than the description of a line. We cannot concur in this view. The function of these commissioners is one of high import. It is expressly provided for by the constitution. They are required to determine upon oath the necessity for taking private property for the public good, and to ascer tain and fix the amount of damage or compensation, and this implies that they shall know what the conditions are on which their judgments must be exercised. The result may depend wholly upon the dimensions, and it cannot be intended the Legislature designed to leave commissioners without the means to enable them to discharge their high duty intelligently. They should not only have before them the entire subject of their inquisition in a shape so distinct as to warrant an intelligible decision, but the proceedings should show that such was the case. Their judgment ought to declare upon its face what lands it devoted to the public good and what sort of ditch in its dimensions they approved, and of course all this should appear in the record. Public and private rights, the certainty of titles, and the general peace and order are all concerned in having specifications and in having a durable record of them. But it is unnecessary to rely on general reasoning. The amended statute requires the commissioner, before calling a jury or obtaining the appointment of commissioners, to “determine the route, - width, length and average depth” of the proposed ditch. This is imperative, and the purpose is obvious. It is not required that it may be retained as something for the private satisfaction of the drain commissioner. The intention is to afford precise data to be acted on by the jury or commissioners, and the regulation contemplates that the scheme thus marked out shall be viewed as the subject for their judgment, and when their determination is made it should embody in terms or by certain reference the matter which has their sanction. Their judgment should explain what it is they decide to be for the public good and what lands they find it necessary to take for such end and what is the subject matter of their valuations, and so on. It was not necessary that the statute should expressly direct what should be matter of record and how the record should be made up. The common law applies and it determines that in all such proceedings which are quasi judicial, every substantial ingredient should be set down in writing. The defect in the present case is vital. There is nothing in the record which makes known what specific land, if any, has been condemned or what kind of a ditch has been approved of, or what basis the commissioners acted on. It is scarcely necessary to add more. One of the objections made against the present application is that the plaintiff appealed from the appraisal commissioners to a justice of the peace. It is sufficient to observe that the appeal was too late, being more than “ten days after the act complained of,” and was finally abandoned. The proceeding must be quashed. The other Justices concurred.

Cooley, J. Defendant in error is and was in April, 1877, the wife of Charles L. Bounds. Her husband previous to the time named, had been engaged in mercantile business in partnership with one Shakespeare, and the copartnership went into bankruptcy in that month. Plaintiff in error was then appointed assignee in bankruptcy, and took possession of their stock as such. The question soon arose whether each of the partners was entitled to an exemption from the stock of two hundred and fifty dollars in value, under Comp. L., § 6101, clause 8. Bounds claimed the full exemption on his own behalf, but the assignee refused to allow more than one exemption to the two partners, and proceeded to make sale of the property. Mrs. Bounds thereupon brought action under Comp. L., § 4805, which permits the wife to bring suit in her own name for property which the law exempts as against the debts of the husband. The assignee denied the jurisdiction of the circuit court, but that court decided against him. The question of jurisdiction is therefore the first question presented by the record in this court. The right to the exemption is claimed under sec. 5045 of Revised Statutes of U. S., 1873, which after providing that there shall be excepted from the operation of the conveyance to the assignee, such property, among others, “as is exempted from levy and sale upon execution or other process or order of any court by the laws of the state in which the bankrupt has his domicile at the time of the commencement of the proceedings in bankruptcy, to an amount allowed by the constitution and laws of each state, as existing in the year eighteen hundred and seventy-one,” goes on to provide that “These exceptions shall operate as a limitation upon the conveyance of the property of the bankrupt to his assignee; and in no case shall the property hereby excepted pass to the assignee, or the title of the bankrupt thereto be impaired or affected by any of the provisions of this title; and the determination of the assignee in the matter shall, on exception taken, be subject to the final decision of the said court.” It is argued that, as the statute excepts the exempt property from the transfer to the assignee, any disposition of it by the assignee is a conversion, and may be dealt with like any other conversion by the court having jurisdiction of common law actions. This argument does not fully cover the case. It is true that the assignee never obtains title to the exempt property, and if the exemption' were of some specific chattel or chattels, where neither selection nor valuation was required, perhaps the assignee might be held to be a trespasser if he intermeddled with it. But where the exemption is of one article to be selected from many, or' of' property to a certain valuation, to be set apart from a larger quantity, the necessity that the possession and control should pass for the time being to the assignee must often be imperative. If he does not have the title to the whole, he must at least have temporary dominion over it, in order that the exemption may be measured or set out. The statute of the State contemplates that when a sheriff makes levy upon property from which an exemption is to be taken, he shall levy upon and appraise the whole (Comp. L., § 6102), and the section of the bankrupt act from which an extract is above made, plainly intends that the assignee shall take a corres ponding possession. The first decision upon the exemption is to be made by him, with a right of appeal to the bankrupt court. The bankrupt act, therefore, contemplates that the court in which the bankrupt proceedings are had shall have jurisdiction where exemptions are claimed. But no recognition of that fact in the statute could be needful to give jurisdiction, since the court would have it as a necessary incident to the settlement of the bankrupt estate. For though the claim to exempt property is not strictly a claim of something from the estate, it is a claim to property of which the assignee must have official possession for a time, and any dispute respecting it would involve the question of the extent of the estate, and of the assignee’s duty and responsibility in insisting upon or yielding what he had been disposed to claim. And as in the exercise of his official duties he must be subject to the direction and control of the court that appointed him, it must follow that that court would have jurisdiction in the matter of exemptions. But if that court has jurisdiction at all, and the assignee is to be the moving party in setting out the exempt property, the jurisdiction must be exclusive, for his action or non-action would pertain to his official duties, and over these no other court could have control or supervision to any extent whatever. Moreover, if suits for the recovery of exempt property or its valué might be brought in the common law courts, these collateral suits would have a tendency to interfere with, prejudice and delay the settlement of bankrupt estates, and the bankrupt court, though manifestly the proper court to take cognizance of and settle controversies of the sort, might be delayed indefinitely in the main litigation while collateral controversies were being determined, and would thus, to some extent, be made subordinate in bankrupt matters to the common law courts. We are referred by counsel for defendant in error to Ives v. Tregent, 29 Mich., 390, as a case which settles the point of jurisdiction in her favor. The cases are not analogous. The gravamen of the complaint there was that the assignee, after having sold property as such, refused to make delivery. In respect to that property, his duties and authority as assignee ceased when the sale was made, and when he refused afterwards to perform his contract, the breach of duty was personal, not official. The case of Voorhies v. Frisbie, 25 Mich., 476, is more in point. It was there held that suits by an assignee in bankruptcy, the right to maintain which is only given by the bankrupt law, cannot be instituted in the State courts. The right which is in question here must also be regarded as a right under the bankrupt law. The judgment must be reversed, with costs of both courts. As no recovery can be bad under the bill of particulars filed in the court below, a new trial will not be awarded. The other Justices concurred. The section is as follows: “The following property shall be exempt from levy and sale under any execution, or upon any other final process of a court: * * * Eighth. The tools, implements, materials, stock, apparatus, team, vehicle, horses, harness, or other things, to enable any person to carry on the profession, trade, occupation, or business in which he is wholly or principally engaged, not exceeding in value two hundred and fifty dollars.”

Campbell, C. J. Complainant as heir-at-law of one-tenth and grantee of three-tenths of her grandfather Joseph Smith’s estate, filed her bill to establish a trust in her favor in certain lands in Manistee county, known as lots 6 and 10 of section 6 in township 21 north of range 16 west, and lot 1 of section 1 in township 21 north of range 17 west, which she claims were obtained by Filer and Edmund and John Canfield to be patented to them by the State land office under a claim belonging to Joseph Smith’s estate which they set up as belonging to them. John Canfield as grantee of his brother Edmund holds lot 1; and Peters holds lot 10 by mesne conveyances derived from Filer. The bill was dismissed below, and she appeals. Joseph Smith in March, 1851, entered these lands and paid for them at the U. S. land office in Ionia. They turned out to be within the condition of swamp lands set apart for the State of Michigan. On the 11th of May, 1853, the commissioner of the general land office informed the land officers at Ionia that those entries with many others were illegal on that account, and directed them to notify the parties interested to apply to have their purchase money refunded. On the 19th of November, 1856, Joseph Smith received back his money with a certificate of cancellation from the receiver of the Ionia land office, and on the 11th of December, 1856, made his claim*to secure the lands at the State land office, depositing his certificate and the amount to pay for the lands at $1.25 per acre, and tak mg the commissioner’s certificate and receipt. The claim was recorded in the books and entered on the maps. ' The act then in force (Act 166 of Laws of 1855) provided that where such land purchases from the United States had been canceled as covering swamp lands, the purchaser, his heirs or assigns might at any time before the lands wore offered for sale by the State or purchased by any one else, be entitled to purchase them at $1.25 per acre on presentation of a certificate of such purchase and cancellation from the register of the land office where such purchase was made. An objection is made in this case that the receiver’s certificate does not satisfy the law. It appears from the public documents in this cause that the cancellation is made by the office at Washington, and that the action of the local land officers is merely in obedience to the orders of th'e commissioner. It is not competent for the State to lay down rules for the government of those officers, and we cannot suppose that this statute was intended to make the protection of the purchaser whose lands were involved to depend on the technicality that his certificate must come from one land officer instead of the other, when no State court could compel either to issue it. We must assume it was only intended to provide for official evidence from the United States land office, and not to prescribe who should sign it. We do not think there is any force in this objection; and the State land office made no objection when the certificate was presented there, but received and acted on it as sufficient. The laws of the State did not allow these lands to* be finally disposed of before patents were issued to the State. The patents were not received for these lands until February, 1867. We think it appears that they had never been offered for sale when they were patented' to Filer and the Canfields on the 28th of March, 1867. At that time Joseph Smith had been dead several years. Filer and the Canfields knew of his original purchase and its cancellation, and knew of the privileges given by the act of 1855 to such purchasers, their heirs- and assigns. Joseph Smith left two sons, Augustus E. Smith and Luther G. Smith, and two daughters, Nancy Bagley— now Nancy Bounds — and Yioletta Sherwood. Complainant and her brother George Ford, who has quit-claimed to her, were children of another deceased daughter. Complainant holds the title of Luther G. Smith from his assignee. Filer procured quit-claims from Augustus E. Smith in August, 1861, from Mrs. Sherwood in August, 1866, and from Mrs. Bagley in May, 1864. He claimed to have an execution title against Luther Smith, but has not proved it, and this need not be regarded. In January, 1867, Filer quit-claimed lot number 1 to the Canfields, and had previously asserted a right of some kind in the whole lands, subsequent to his first purchase from Augustus Smith. He also paid taxes on them, although the lands were not then legally taxable. These lands which had been purchased by private parties from the United States after they had become subject to the rights of the State as swamp lands, were marked with a peculiar mark on the State land office maps, and were known as “ green lands.” Filer and the Canfields knew these lands were green lands. They knew that Smith’s heirs had a right to obtain them from the State before they were offered at public sale, and that no one else except their assignees could do so. Filer tried to get quit-claims from all the heirs, but got none from Luther Smith, and the two Fords were under age. He went to Washington in advance of the patents issuing to the State to see if he could get them, but found he could not. He then kept watch of the issue of the patents by inquiry at the land office, and within a very short time after these patents issued he applied for and obtained patents to himself of two of the lots and to the Canfields of the other, — not as lands which were open to public sale, but under the act of 1855. The only right they could possibly have had under that act was in the right of Joseph Smith or his heirs. The deeds from the heirs were found on file in the State Land Office, and we have no doubt the purchase was made under the assertion of that claim. 'Whether the money deposited by Joseph Smith was used as purchase is not entirely clear. Under these circumstances it needs no discussion of authorities to show that these patentees took the title in trust for themselves and their co-tenants, the heirs who did not sell. Having done this the analogies of common law leave the trust in force unless equities have arisen which would estop the beneficiaries from enforcing it. Filer has made no showing of any such equities. There are no facts presented which would give him any right to set up a better claim to the lot he still holds from what he had originally. The same is true as to Canfield. He was affected originally with notice before he bought out his brother. Whether the money to pay for their lot was paid by Filer as the land office entries show, or was advanced by themselves, or was taken from Smith’s deposite, the sum was trifling and was paid in their own wrong except for the three-fifths interest which had been quit-claimed by the heirs. The delay has not damnified any of them. The interest of Peters is different. He bought lot 10 from grantors whose title was conveyed by Filer in 1870. We find nothing in the record to satisfy us that he had notice of the rights of complainant or her grantors. We think his title must stand. As no demand has ever been made of Filer or the Canfields for an accounting, we think there is no sufficient showing to call them to an accounting now for the use of the land, which as tenants in common they might lawfully possess. Everts v. Beach, 31 Mich., 136. The claim for purchase money of the sale of the parcel now held by Peters accrued more than six years before suit’ and is 'barred by lapse of time. The decree dismissing the bill as to Peters must be affirmed with costs to him. The decree as to the other defendants must be reversed and a 'decree entered requiring the defendants Filer and Canfield to convey to Mrs. Davis a good and unencumbered title to two-fifths of the lots held by them respectively as set forth in the bill, and declaring their original grants from the State to have been made in trust as above mentioned. Complainant to recover costs of both courts. The other Justices concurred.

Cooley, J. Delators were contractors with the city of East Saginaw for the grading of a street in that city. Under the provisions of the city charter, payment for the work could only be made from a special assessment made for the purpose. One of the property owners whose lands were assessed contested his liability, and a levy was made upon his property. An arrangement was then made between him and the city authorities that he should deposit his check for the amount with the city treasurer, and that an .amicable suit should then be instituted by him in the Saginaw circuit court to determine his liability. This arrangement was carried out, and the decision of the court was in his favor. The relators insist that the delivery of his note to the city treasurer was a payment into the special fund, which entitled them to receive the amount, and that the arrange ment for a suit was wholly unwarranted and could not affect their interests. Assuming the judgment against the city to be valid, they claim that it could not operate as a judgment to withdraw moneys from the special fund, but must be satisfied from the general fund only. And they now apply for a mandamus to compel the payment to them of certain orders drawn for work performed under their contract, and payable out of this special fund. There is no occasion to discuss the question whether the delivery of the ch'eck was or was not, under the circumstances, equivalent to payment. Admit it to be a payment,- and it was a compulsory payment, because made under the stress of legal process. First National Bank of Sturgis v. Watkins, 21 Mich., 483. The tax payer was therefore entitled to bring suit to recover it back. And the recovery settles the point that the amount was never lawfully in the special fund, and consequently that relators were never lawfully entitled to it. The mandamus is denied with costs. The other Justices concurred.

Campbell, C. J. Defendant was convicted of burglary in the alleged nocturnal breaking and entering of the house of one Charles L. Stevens, in Detroit, and stealing a quantity of silver and other small articles therefrom. The only evidence connecting defendant with the offense was his arrest with a satchel containing the articles. The only evidence of the burglary was that the house, which was temporarily unoccupied except by a brother of the owner sleeping in it, was entered through a window in the front; that a lamp which belonged in the kitchen was found unlighted in the front hall; and that a clock had stopped at five minutes past eight, and that its door had been opened and it was not run down. This case was before us at the last October term, and some of the questions now before us were somewhat considered. It seems to us- that some things which were then passed upon do not appear to have received full consideration on the second trial. It appears from the evidence for the prosecution that on the evening of the arrest, at a late hour, one O’Neil saw prisoner and two men named White and Hardy walking up Jefferson avenue and prisoner was carrying a satchel. This was near Third street. He at once walked up Jefferson avenue to Cass street, three blocks, to notify a policeman, and there found policemen John Daey and Michael Fitzpatrick, and told them, and they answered, , “ That is the party we are waiting for.” Daey stopped them, and Fitzpatrick asked them if they were the three who had been in Whitson’s saloon. They answered, no. Daey asked where they came from, and Gordon answered, ‘from the Central depot/ and struck Daey, dropped the satchel and ran. Fitzpatrick struck White and arrested him. No attempt was made to arrest Hardy. Daey and Fitzpatrick swore to seeing Gordon, White and Hardy in Whitson’s saloon between 11 and 12. There was no evidence in the record showing any acts or sayings of any of these parties in the saloon throwing any light on the case. Daey swore that he saw Hardy afterwards and did not arrest him, and was told by roundsman Somerville that he was not wanted. He also swore that he heard detective Sullivan say in the station house at the same time that they were looking for Gordon, who was afterwards taken. Dacy was asked, but the court refused to allow the question to be answered, whether on the evening of the arrest, or the day following, he saw detective Sullivan and heard him claim that he knew all about the affair, and that if Dacy and Fitzpatrick had not bungled the matter, Gordon as well as White would have been arrested; and further, whether Sullivan did not give him to understand that Hardy had given him notice or warning, and that Hardy was taking them where they would be easy to arrest. We cannot see on what principle this was ruled out, and we think it within our previous decision. It was certainly a very singular circumstance that these men, who were shown by the prosecution to have been together an hour or two before the arrest, were waited for and expected by police officers and by O’Neil, without any attempt to arrest them earlier. It is also very strange that Hardy, who was with the others at the place referred to by the arresting party, was not seized at all. It is impossible to account for the conduct of these persons except on the manifest ground that some one knew of the burglary if there was a burglary, and that whether honestly or dishonestly, it had been determined to take White and Gordon and leave Hardy out. There could have been no cause for arresting any of them unless information had been received from some one having knowledge of facts, or unless the whole affair was a fraudulent device of somebody to injure one or more of the two persons arrested. There is no right to arrest persons not taken in the act' of felony without sufficient reasons of belief, and if there were any in this case the conduct of O’Neil and the officers shows conclusively that the knowledge or suspicion had been received earlier from some peculiar source, and that there must have been some unexplained reason for the delay. The questions put to Dacy related directly to the subject matter of the arrest to which he had testified, and to the reasons for the arrest. If the arrest was dishonestly planned it would certainly have some bearing to show what the plot was; and this could hardly fail, if disclosed, to furnish means of clearing up the circumstances which were ambiguous. If honestly made it would be equally pertinent. The idea that it is either commendable or justifiable in the administration of criminal law to' attempt to suppress facts which bear favorably on the accused is a dangerous one. Any prisoner on trial ought to have full opportunity to bring out all the surroundings of the transaction with which he is claimed to be involved. It seems to us that it was extremely important in this case to' know how and why this arrest was brought about. The subsequent course of proof made this appear more evidently, because there was much reason to claim some sort of complicity between Hardy and some of the police force, and whatever it may have meant, the prisoner had a right to show it. But in Dacy’s case the questions put were in the direct line of proper cross-examination upon the matters to which he had testified in chief, and we can see no reason for their exclusion on any ground. We have referred to this point because it had a decided bearing on other things arising in the cause, and the ruling probably influenced the result. We think as the case stood the jury should have been directed to acquit the prisoner. As already suggested, the only evidence of burglary by any one was in the fact that a window was opened at some time unknown; that a clock was found stopped at a few minutes past eight, and an unlighted lamp in a place where it was said not to belong. It would require a lively imagination to discover what object burglars could have in stopping a clock, although such devices may. sometimes be resorted to for creating false appearances ’by those whose ingenuity is directed towards throwing suspicion on others. Actual criminals seldom resort to such foolish expedients on their own account. The other facts were so ambiguous that the prisoner was entitled to the benefit of all ambiguities. His possession of the satchel alone, even if a guilty one, had no tendency of itself to show him guilty of burglary. The prosecution had in court a witness named on the information, convicted of the charge, who was in the custody of the law, and who must necessarily have known the facts. Their suppression of this positive testimony which they were on every consideration of justice bound to produce, entitled the prisoner to every inference that could be drawn from it. There was no evidence that the prisoner had been seen near the house, and no other proof to connect him with any offense in it, and under all these circumstances a conviction would be so purely guess work as not to be maintainable. The prisoner’s statement, if believed, would have shown him to have been the victim of a scheme of Hardy and some police agent, and the testimony to show such a scheme was practically shut out. It would be unjust to these parties to hold that their guilt appeared from this record. But there was quite as strong circumstantial evidence that some one had conspired against Gordon as of his own guilt, and we do not think him lawfully convicted. It must be certified that the conviction was erroneous, and that the respondent should be discharged and the prosecution discontinued. The other Justices concurred.

Graves, J. Yan Dusan sued on the common counts for services in making a sewer. A written agreement had been signed and he claimed for an unpaid portion of the agreed price and for some items supposed to be outside of the express terms, but asserted to be justly chargeable. It appears that recovery was opposed on several grounds, but vainly. The main one seems to have been that the improvement as contracted for and carried out was not in a part of the township open to the exercise of such authority or where such things could be done at township cost, but was upon territory which in fact was under separate village government, namely, the village of “Sault Ste Marie.” The charge informs, us that there was. evidence in support of this view and evidence likewise that the township had paid a portion of the contract price, and the learned judge ruled in substance that admitting the commissioners had. no power to contract for the sewer by reason of its location out • of town authority and in the village, it was still competent for the jury to find that in paying part of the price the township affirmed the contract and made the transaction binding. We cannot concur in this statement of the law. ■According to the hypothesis the case was such that if all the township electors and all the township officers had united or assented in any mode or under any particular formalities the original transaction would have been invalid, and the principle of law is that a corporation cannot ratify an act which it could not have done when it occurred. Taymouth v. Koehler, 35 Mich., 22; Marsh v. Fulton Co., 10 Wall., 676; Horton v. Town of Thompson, 71 N. Y., 513; McCracken v. San Francisco, 16 Cal., 591; Ashbury Railway Carriage & Iron Co. v. Riche, L. R., 7 H. L., 653: 14 Eng., 42. Were it not so our whole scheme of laws for confining corporations within determined bounds would be in danger of subversion. A principle of unlimited self expansion would be admitted. In order to grasp ungranted power nothing more would be necessary than to act beyond the limits of authority and then assume the act as one of force and binding efficacy. This rule that a corporation cannot vitalize and substantiate something it has no original power to do, and which if done as matter of fact is absolutely void in point of law, has no bearing on those cases where property or money obtained beyond power is required to be disgorged, or to cases where the fault in question is the want of formalities or the neglect of methods, and the irregularity is not such as to render the proceeding positively void. The recovery of money or property obtained and held through transgression of power does not affirm the power. It denies it. The ground of reclamation is the denial of the adverse title, and wherever the act in controversy might have been so done originally as to bind, there is no principle in the way of a subsequent binding ratification or assumption so far as respects the immediate parties. The case before us is one where the township authorities had no power and where the township itself gained nothing. Eor the purpose of the question the improvement might as well have been made in another State. One or two other questions are mooted which would deserve notice if sufficient facts were shown, but the record does not disclose enough for the purpose. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred.

Marston, J. This is an application for a mandamus to compel the board of supervisors of Kent county to audit and allow certain accounts presented by the city of Grand Eapids for police justice and police officers’ fees. Under an act to establish and organize a police court in the city of Grand Eapids, certain criminal jurisdiction is given to the police justice, and by the act certain specified fees are by him to be taxed as costs in each case, to be collected and paid to the treasurer of said city; the police justice, the chief of police, and members of the police force receiving in lieu thereof an annual salary to be fixed by the common council and paid by the city. In relator’s petition three classes of cases are presented: those in which the police justice had jurisdiction to examine and hold to bail; cases where he had jurisdiction to try; and cases arising under the disorderly act; and each class is again subdivided, showing the manner in which the case was disposed of by the police justice. It is not disputed but that the fees in criminal cases, under certain circumstances, are a proper claim against the county, but it is claimed that in those cases in which the prosecution failed, unless security for costs was required, such costs could not be charged against the county; that in cases where sentence was suspended or the respondent found not guilty or discharged, costs eould not be charged against the county; that costs can only be charged against the county where they have become a part of the judgment against the respondent and an effort has been made to collect the same and failed; and that costs in the third class cannot be charged against the county, as the jurisdiction of the police justice in that class of cases is not under the general statute relating thereto, but under the charter and ordinances of the city. Other questions are raised which will be noticed hereafter. By section 2 of the act referred to (3 Sess. Laws, 1873, p. 189) the police justice is given sole and exclusive jurisdiction to issue process for, hear, try and determine all offenses against the charter of said city, or the by-laws or ordinances of the common council, and concurrent jurisdiction with justices of the peace, in the arrest and examination or trial of offenders against the general laws of the State for offenses committed within the limits of the city. .Section 7 provides that the police justice shall have authority in all cases, at his discretion, to require of the complaining witness security for costs. If the accused be discharged on examination, or acquitted on trial, he shall enter a judgment for costs against the surety and complaining witness, either or both, which shall be of like force and effect, and shall be collected on execution, as any other justice’s judgment: Provided, before rendering such judgment said justice shall certify on his record that such payment of costs by such complainant, in his opinion is just and equitable. The provisions of this section clearly cannot be limited to cases arising under the charter, by-laws and ordinances. While it resembles •somewhat the general statute of the State relative to security for costs in criminal cases, yet unlike that statute, which makes it the duty of the magistrate, to require security in all cashes where the prosecution is at the instance of some private person, this leaves it to the discretion of the police justice to require such security to be given, and to this extent the general statute, Comp. L., § 7488, is supplanted. This provision of the Police Court act clearly contemplates that the police-justice will in certain cases require security to be given, while in others he will not; that he will exercise a judicial discretion upon that subject in each case when it comes before him; and that even where security is-required and the prosecution fails, judgment for costs; shall not be rendered against the complainant and surety unless the justice can certify that in his opinion such a. result would be just and equitable.' Under this provision; it is therefore left to the discretion of the justice whether-he shall require security to be given at all, and even if he does, whether he shall in any event render judgment thereon. This discretion can be exercised by the police justice and by him only, and cannot become a subject of review by the board of supervisors. And the auditing-of costs, otherwise proper, can in no way be made to-hinge upon the fact whether security for costs was or was not required. Secondly. In reference to eases where costs have been taxed and judgment rendered therefor, but no effort made-by the police justice to collect the same. The provisions of the act, requiring costs to be audited by the supervisors in cases where they have been taxed against the defendant, is as follows: “And in case the costs aforesaid, taxed against the defendant in any sentence imposed by such justice in suits tried and determined by him, for a violation of the criminal laws of this-State, shall not be paid by said defendant, the same shall be audited by the board of supervisors aforesaid, and paid out of the treasury of said county. It shall be the duty of said justice to collect such costs and pay the same to the treasurer of said city at the close of' each month, taking his receipt therefor, * * and shall report the same to the common council of said ■city, at its first regular meeting in each month.” Local Acts, 1875, p. 744, § 8. This last clause making it the duty of the police justice to collect such costs and pay over and report the .same each month, cannot refer to a collection by him from the county, as it is well known monthly meetings ■of the board of supervisors are not held, — a fact of which we may take judicial notice; — therefore he could not collect and pay over monthly in this manner. It has reference to a collection to be made from the respondent •against whom a judgment for costs has been rendered. An effort, therefore, should be made in the regular and ¡customary manner by the police justice to collect such •costs, and failing so to do, then and not sooner they become a proper charge against the county. This however can have no application to cases where sentence has been suspended. In such a case the charge at once becomes a proper one, against the county. The same is equally true in cases where the accused is found not guilty, or discharged for want of prosecution. Such costs at once become a proper claim against the county, and this by virtue of the general laws of the State. The jurisdiction of the police justice is concurrent with that of justices of the peace, in the trial of criminal cases, and the same rules must govern, unless as otherwise provided in the police act. Under the general laws the expense of enforcing the criminal statutes of the State must be borne by the counties, and the same rule must apply here. See also see. 25, title 4 of charter. Thirdly. In reference to cases against disorderly persons. We are of opinion that the police justice has jurisdiction in eases where persons are proceeded against under the statute. Where' the proceedings are under the statute, the expenses thereof are a proper charge against the county, but not where the proceedings taken are under the charter, by-laws or ordinances. An examination of the files and records in a given case will readily determine where it belongs. What has thus far been said is considered applicable alike to police justice’s and police officers’ fees. We now come to consider some of the less important questions raised. It is said the relator does not show what persons were arrested without process by members of the police force. Section 25 of title 4 of the charter of Grand Rapids (Local Acts, 1877, p. 149) makes the expense of enforcing the criminal laws of the State in certain cases a charge against the county; Provided, “That all persons arrested without process by police constables or city marshal shall be prosecuted under the city ordinances, unless otherwise dictated by the prosecuting attorney of the county of Kent.” This provision contemplates that a class of offenders may be arrested without process. It also contemplates that the offense for which they are arrested may be of such a grade that they should be proceeded against therefor under the general laws of the State, and that the public prosecuting officer shall be called upon to determine that question. This is eminently proper, and tends to the enforcement of justice and to prevent conflicts between the city and county officers. This provision should be strictly obeyed and enforced. In so doing all petty offenses will be prosecuted under the city ordinances while those of a higher grade will come under the general statutes. Where parties are thus arrested without process, the costs in connection therewith, in all cases that might have been prosecuted under the ordinances, cannot be made a charge against the county, no matter how proceeded against, unless the prosecuting attorney has been called upon, and directed the proceedings to be carried on under the State laws. As to the trial fee of one dollar made by the police justice, the statute allows for trying each cause one dollar. Where the ease is tried, this charge can be made without any reference to the time occupied in the trial or the number tried in any one day. In eases dismissed or nol. pros’d, no such charge can be made. We have thus, we think, passed upon all the questions raised that are necessary to enable the city and board of supervisors to adjust the matter in dispute without farther trouble. This, we presume, is all that has been desired. The writ will issue if desired, but without costs. The other Justices concurred.

Marston, J. May 10, 1875, complainant made and delivered to defendant his promissory note for fifty dollars, payable six months after date with ten per cent, interest, and to secure payment thereof he executed and delivered a mortgage upon certain real estate. This mortgage contained a clause, “ that as often as any proceeding is taken to foreclose this mortgage, either by virtue of the power of sale herein contained, or in chancery, or in any other manner provided by law, said first parties shall pay party of the second part twenty dollars, as a reasonable solicitor or attorney’s fee therefor, in addition to all other legal costs.” The note not having been paid, Mr. Hart on December 11, 1876, placed it with the mortgage in his attor.ney’s hands with instructions to collect the same by a foreclosure of the mortgage. On the next day the attorney wrote a statutory notice of sale and sent the same to a newspaper office. On the 14th of December, being the first publication day of the paper after the notice was sent in, he went to the newspaper office and ascertained that the notice was in type and locked . in the form for printing. He then requested the publisher of the paper to take out this notice, as he did not want to begin the publication that week. On the 15th, proof of the notice was sent to the attorney, who corrected and returned the same to the publisher, with a request that the same should not be published until farther notice. The amount claimed to be due in this notice at the date thereof, December 15th, 1876, for principal and interest, was $58.19. December 16th, 1876, the complainant, who was mortgagor, tendered to the mortgagee, defendant herein, the sum of $58.25 and requested him to discharge the mortgage. This was not accepted. The parties then went to the attorney’s office, who informed them that the notiee of sale was in type, and that he was thereby entitled to the full attorney’s fee of $20 and the printer’s costs, $4.88, but offered to accept $10 in full of both attorney’s and printers’ fees if paid that day. This amount not having been paid, the property was advertised, sold and bid in by the mortgagee. The mortgagor then commenced the proceedings ira this case in chancery, asking that such mortgage salte be set aside as void, and the premises be released from the mortgage lien, and also that defendant be decreed to> pay the statutory penalty of one hundred dollars for his; refusal to discharge the mortgage at the time the tender' was made and the discharge presented to him for execution. In the bill of complaint it is set forth that at the time; the note was given, the amount loaned him was not fifty, but forty dollars, while defendant in his answer asserts; that the amount loaned .was forty-five dollars. While it is not clear beyond all doubt, yet in accordance with the weight of evidence, we find that the amount loaned was forty-five dollars. This would make the amount due at the date of the tender $52.39, exclusive of attorney’s fee or costs. We are also of opinion that no printer’s fees for setting up the advertisement could be allowed. It may be true that the publisher of the newspaper would have a valid claim against the mortgagee for what had been done, but the attorney withheld the publication for one week. He might have postponed the publication of the notice indefinitely, or for one month or six months or even for 'a longer period, in either of which events it certainly could not be claimed! that the cost of setting up a notice thus withheld could be charged to the mortgagor should he, during the interim, and before an actual publication of tbe notice had taken place, offer to pay tbe amount due upon tbe mortgage. Tbe amount tendered was therefore sufficient to satisfy tbe amount due upon tbe mortgage, unless tbe mortgagee was entitled to tbe attorney’s fees provided for therein. Admitting for tbe present that tbe preparation of tbe notice of sale in good faith by the attorney was such a commencement of proceedings within tbe meaning of tbe terms of tbe mortgage, as would entitle him to claim tbe attorney’s fee provided for therein, it still remains to be considered whether a payment of tbe amount thereof could be insisted upon. It is true that a custom has grown up to insert in mortgages a provision for tbe payment of an attorney’s fee, in case proceedings are commenced to foreclose tbe same, and that tbe Legislature and members of tbe bar have apparently acquiesced therein. This, however, is not entitled to very much weight, as mortgagors found it more profitable to pay tbe demand than test its validity in tbe courts, so that no very great •attention has ever been called to tbe matter. If parties ■can stipulate for such a fee and fix tbe amount thereof, it is very evident that tbe greatest hardship and oppression may be practiced. i There are but few loans made where tbe debtor does not expect and hope to be able to pay tbe amount thereof when tbe same becomes due. Nor do men usually loan money under tbe supposition that tbe same will not be paid at maturity. To this there undoubtedly are exceptions. Under such circumstances no serious objection is made by tbe borrower to tbe insertion of a clause in tbe mortgage providing for an attorney’s fee, or to tbe amount thereof, as be does not expect that such clause will ever become operative. It is also true that in some eases tbe borrower is at tbe mercy of tbe lender, and will consent to any terms proposed in order to secure tbe desired loan. Even if we admit tbe validity of such a provision, should it not be fixed at some reasonable sum, in view of the amount of the loan and the services performed ? In foreclosures by advertisement, there must in some cases be much more labor for an attorney to perform than in others, even in cases where the amount secured is the same. If, therefore, the reason for inserting such a provision is to provide a fair recompense for the services actually to be performed, it is evident that no definite fixed sum could be agreed upon in all such cases. Then again, take two cases where the amount secured in each was the same, and where the labor in foreclosing and the value of the services therefor should be the same: in one case upon the first publication of the notice of sale, the amount due is paid; in the others the proceedings are permitted to continue to a sale. Should the attorney’s fee in each case be the same ? Clearly we think not. Take this case by way of illustration. Here the notice was prepared, taken to the newspaper office, proofs read and corrected; for such services the party is to receive the same amount as an attorney’s fee that he would have, no matter how many postponements there may have been, or what other and farther services may have been performed, before the claim was satisfied. To fix the value of services in such an arbitrary manner could not be done upon any fair, reasonable or equitable basis. If after the termination of the proceedings, either by a payment or sale of the premises, the mortgagee should, without any reference to the attorney’s fee provided for in the mortgage, or where the mortgage did not provide for any, call and offer to settle with his attorney for the services performed, he would insist that he should not pay quite so much where no greater service had been performed than in this case, as in another like ease where the property was sold. The result therefore is that the attorney’s fee is agreed upon arbitrarily by the mortgagee and his attorney, as the measure of the latter’s services, whether it shall turn out to be more than a fair recompense or less; or in some cases the mortgagee must pay less than the amount provided for, and pocket the difference. There is another feature inseparable from such a provision. It hastens the commencement of proceedings, in order that the attorney’s fee may be claimed. It may be said that the mortgagee in making a loan of money has the right to so secure himself, that in case the amount is not paid at maturity he may be able to enforce collection without loss. Such, however, is not the theory upon which the law proceeds. There is a certain class of expenses fixed, not by the agreement of the parties, but by statute or rule of court, which the successful party always receives in full. Not so, however, as to the amount paid his attorney. He may, by statute or rule, be allowed an attorney’s fee, but the same is definitely fixed, and even here the amount is greater where there has been a trial than where there has not been. But all these are risks which the party loaning money must assume. In some eases the risk must be greater than in others. This the law permits him to provide against by a higher rate of interest, and although in some cases even the highest rate permitted would not be sufficient to .cover the risk, yet the law will not enforce an agreement for a higher rate by way of indemnity. In this case the amount loaned was $45 for six months with ten per cent, interest. At the expiration of this time, the mortgagee at once could have commenced proceedings to foreclose, and thus in addition to all other costs, have added this attorney’s fee, even although he might not have obligated himself to pay, or paid one dollar as an attorney’s fee. If, then, the amount of the-note, interest thereon, costs, and attorney’s fee had been paid the day following the commencement of such proceedings, the mortgagee would have received the amount actually loaned with interest thereon at the rate of one hundred and twenty per cent, per annum. Had there-been no mortgage security in this case, and a like attor ney’s fee had been inserted in the note, it could not have been enforced, as we have lately held. Bullock v. Taylor, 39 Mich. So parties contracting are not permitted to stipulate and fix the measure of damages that shall be recovered in case of a breach of the contract, grossly in excess of what the damages should actually appear to be. Just compensation for the injury sustained is the principle at which the law aims, and the parties will not be permitted, by express stipulation, to set this principle aside. Jaquith v. Hudson, 5 Mich., 123. Other instances might be given. To permit the parties to agree upon any attorney’s fee they should think proper to insert in a mortgage, payable in full whether much or little should be done towards the foreclosure thereof, would be in violation of the rule of just compensation, and contrary to well-settled principles of public policy. Parties may make and carry out any agreement they please which does not affect the public or the rights of third persons, but in case of dispute they must not expect the courts to enforce any unconscionable bargain they may have thought proper to make. If the creditor can insert such a provision in a mortgage and enforce performance thereof, why not insert a clause that if the debt is not paid at maturity, for every letter he shall write his debtor demanding payment, and for every timé he shall call upon his debtor to demand payment, he shall receive a definite fixed sum? It may be said, however, that the attorney’s fee as agreed upon, if reasonable, should, where the property has actually been sold, be allowed, and a proportionate amount thereof where steps have, been taken and payment made before sale. There is force in such a view, yet there are serious difficulties in the way, where the mortgaged premises have not been sold. The proceedings are not in court; there is no way provided for taxing such attorney’s fee or fixing the pro rata amount that should be paid, and the debtor, if he desired to tender the amount due, after proceedings had been commenced but before sale, would have no means of ascertaining the exact amount of the attorney’s fee to be paid, and could not, therefore, with any reasonable degree of. certainty, make a tender of the amount due and costs then accrued. In the absence of legislation upon this subject, there is no way in which the attorney’s fee provided for in this mortgage can be apportioned, and we are clearly of opinion that the full amount thereof could only be insisted upon, if at all, in case the property had been sold under the statute. The amount tendered was more than sufficient to pay the amount due, and the mortgagee should have executed a discharge. It does not necessarily follow, however, that the statutory penalty can be allowed. The mortgagee ■ although mistaken as to his legal rights, yet was acting in good faith under the advice of counsel. The penalty is allowed as a punishment for a wrongful refusal to discharge, and not for a refusal under a mistaken apprehension of right. As both parties acted upon a wrong assumption, yet apparently in good faith, the present should be treated as a bill to redeem, but for no other purpose. The complainant should have ninety days to redeem the premises upon payment of f52.39 with interest thereon from December 16th, 1876, in accordance with the act of 1869 (1 Sess. L. 1869, p. 12), but without costs to either party, and the decree below will be modified accordingly. The other Justices concurred.

Campbell, C. J. Stuart was sued on a verbal promise to pay the note of John Fitzpatrick and John Fitzpatrick, junior, owned by Gower, but now lost. Delay was made at his request, and he made some payments. The ground relied on for taking the case out of the statute is the alleged fact that he held Fitzpatrick’s property in his control. It is not shown how he held it, although he is shown to have had it in his hands to a greater or less extent. Whatever extensions were made were made under no arrangement with the Fitzpatricks or either of them. The testimony was contradictory. It was held below that no action would lie on such a promise. We think there is no ground for any other doctrine. Upon all of the evidence of the plaintiff it only appears that there was a verbal promise to pay the debt of another and not an independent contract for Stuart’s own account. The case of Calkins v. Chandler, 36 Mich., 320, is relied on to support the action; but in that case the creditor, the debtor, and the surety were all parties to the arrangement, and it was for their mutual convenience. Here there is nothing to show any desire or consent of either Fitzpatrick to any arrangement for the benefit of creditor or surety. The' original debt was kept in force/ and' in this respect the case is within the principle of Baker v. Ingersoll, 39 Mich. We do not discover any line of decisions taking this case out of the plain letter and spirit of the statute requiring such promises to be in writing. The judgment must be affirmed with costs. The other Justices concurred.

Marston, J. The Alpena Lumber Company brought an action of trover to recover the value of certain logs purchased by defendants below at a mortgage sale. Both parties claim title through the firm of B. Cushman & Co., the defendants, under two chattel mortgages •given January 20th and June 12th, 1874, and a sale thereunder; the plaintiff, under a chattel mortgage given August 14th, 1874, with authority to sell thereunder, given afterwards, and other instruments not necessary to refer to. . The plaintiff below, defendant in error, was under the undisputed facts clearly entitled to recover, if the two mortgages of January 20 and June 12 were void for uncertainty. The court instructed the jury that they were void, and this is the only question we consider of any present importance. It appeared that at the time these two mortgages were given, B. Cushman & Co. had a large quantity of logs in Thunder Bay Biver; that in January, 1874, they had over a million feet of logs marked 0 dot K, and that on the 20th of that month they gave Julius Meyers a chattel mortgage on “one hundred thousand feet of white pine saw logs, now on the North Branch so called of Thunder Bay River.” These logs were farther described as having been cut during the winter of 1873-4, but the • particular logs mortgaged, or intended to be, were in no way designated, described or separated from the entire mass bearing the same mark. B. Cushman & Co. also.had a large quantity of logs marked O K, and on the 20th-day of June, 1874, they gave A. Anspach- & Co. a chattel ■ mortgage on “one hundred thousand feet (board measure) white pine saw logs marked O K, now lying within the limits of Thunder Bay River Boom Company.” The particular hundred thousand feet intended to be covered-by this mortgage were in no way separated or designated from the mass bearing the same mark. The parties under whom the Alpena Lumber Company claimed title acquired chattel mortgages on all the logs bearing these marks August 14th, 1874. Some time in the fall of 1874, about the last of October, the sheriff of Alpena county took possession of a quantity of the O K and 0 dot K logs, and it is claimed with the consent of the mortgagors. No attempt had been made up to this time by either the mortgagors or mortgagees to take possession, or separate or designate in any way from the common mass any of the logs intended to be embraced in the Meyers or Anspaeh & Co. mortgages. Third parties therefore having acquired rights in and to all the logs bearing these marks, prior to the time the sheriff took possession of any logs, and prior to the time of any separation thereof, — as against such third parties can these mortgages be held valid and effectual? It will thus be seen that the question- as to whether these mortgages are void for uncertainty or not, does not arise between the mortgagor and mortgagees, and it must also be borne in mind that while one hundred thousand feet of logs taken as they would run, from a larger quantity put in from off the same lands might be but an average in quality and value, yet that one hundred thousand feet could be assorted from amongst the common mass that would average in quality and value much higher than those remaining, and so there could be a like quantity taken out that in quality and value' would be very much below an average. This case, therefore, does not call for any opinion as to what the law would be in a case arising between the mortgagor- and mortgagee, where the rights of third parties had not intervened, or in a case where no discrimination could be made in taking a part out of a larger undivided quantity, as grain in a bin or elevator. It is not- the intention, therefore, to intimate what the rule would be in such cases. It is evident that after third parties have acquired rights in such a case very serious questions might arise in carrying out such a mortgage. If the mortgagee should attempt to take possession of the quantity described, would he have a right to assort and take such logs as he thought proper, or would the mortgagor be the person to make the selection, or both together? If the mortgagee was the proper person, would he not be most likely to pick out and take the most valuable, and if the mortgagor was the proper party to make the selection, he might take the other extreme and point out those of least value, while if both should act in concert and disputes arise between them, which would have the right to control? Or if they did agree, might they not make a selection entirely different from the one contemplated at the time the mortgage was given, for the purpose of injuriously affecting the rights and interests which third parties had in the meantime acquired in the property? It is clear that if the parties interested are to make the selection, then the persons who have, intermediate the date of the mortgage and the time of selection acqriired interests, should be consulted- and take part, and if a number of persons have thus acquired distinct and separate interests, all would have to be called in and would have a right to participate in the selection. This, to say the least, would result in such a diversity of interests that an amicable adjustment would hardly be within the range of possibilities. There would be but one other course left open and that would be to in some way take an average from the entire lot, both in quantity, quality and value. The quantity might be taken of an average value, which would be very unfair, as the best and the poorest logs might be selected to make the quantity taken average in value with the entire mass. It may be said that an average quantity should be taken from the entire lot as found in the river. But' from what part of the entire lot should they be taken, — from the front, the rear or the centre of the drive? It may be said there would be no difference, but this is not true; owing to the current, the quantity of water, and from other causes, logs of a certain kind, size and quality do not come down as fast as others, so that after the logs, have been driven within the boom limits a very great difference'will be found to exist between the quality and value of the logs in the front and those in the rear of 'a drive. It seems to me that serious difficulties must inevitably arise in any aspect of the case in attempting to carry out such an agreement. As well might we undertake to enforce a chattel mortgage given upon a pile of lumber in a certain yard containing fifty or a hundred piles, or given upon twenty sheep in a flock of one hundred, or upon ten head of cattle in a drove or herd of fifty. To sustain such mortgages would, I think, enable parties to commit gross frauds, and would also tend to prevent third parties from after-wards purchasing or acquiring interests in the property, a part of which had been thus mortgaged, and' thus tend to discourage trade. Had the parties attempted to make an absolute sale of the property described, as in this ease, and nothing farther had been done thereunder, it is clear, within previous decisions of this court, such a sale could not be sustained. I can see no good reason for any distinction. It is true that- a mortgage upon property is but a mere security for the debt and that the title to the property remains in the mortgagor. After condition broken, however, when the parties are likely, if at all, to disagree, the mortgagee has the right to take possession and sell the property, so that what at first was but a mere security has thus passed into an absolute sale. I think the authorities cited in the brief of counsel for defendant in error, from this State as to a sale, and from other States as to a mortgage, fully sustain the position taken in the court below that these mortgages could not be sustained on account of uncertainty. The judgment must be affirmed with costs. Thé other Justices concurred.

Campbell, C. J. This case, which is ejectment brought by Chapin and Foss against defendants in error, involves, the effect of a ten years’ possession under a tax-title. The defendants’ grantors went into possession of the premises in question under a tax deed in April or May, 1865, more than ten years before this suit was brought. The possession was such as is usual in case of farming lands, consisting of gradual planting and clearing kept up continuously. The original possessors did not build upon the land for a year or two. But their possession was such as to be open and notorious and adverse to all the world, and is so found. The only doubt thrown upon it by the finding is. caused by the fact that within the ten years before suit, both in 1865 and 1868, some negotiation was had with plaintiffs for a transfer of their rights, which were under-government title anterior to the taxation. It is not found, however, that there was any recognition of right in them, or admission of doubt as to the rights of the occupants. On the other hand the finding is express that the occupants always held and claimed adversely. We think, therefore, that there is nothing to affect them by way of waiver or non-claim, or to break in on their adverse holding. They never recognized plaintiffs as having any rights whatever, and an attempt to buy off an outstanding claim cannot be turned into an admission that it is valid for any purpose. The case is a very clear one on the finding, and the-judgment should be affirmed with costs. The other Justices concurred.

Marston, J. Isaac N. Jenness is sought to be charged as endorser upon certain promissory notes made in September and December, 1877, by the firm of A. & H. Fish, payable to the order of I. N. Jenness & Co. and Frances S. Fish. The firm name of A. & H. Fish as makers and of I. N. Jenness & Co.' as endorsers was signed by Allen Fish, claiming to be a member of each firm. The execution of these notes was properly denied by affidavit accompanying the plea of Isaac N. - Jenness. The copartnership of A. & H. Fish was composed of Allen Fish and Henry Fish. That of I. N. Jenness & Co. was composed of Isaac N. Jenness, Allen Fish and Henry Fish. In May, 1876, Henry Fish died. This dissolved both firms, and after that date Allen Fish could not bind either of the late firms, or the surviving members thereof as such, by signing the firm name. To do so a new authority must have been given him, either express or implied, or his act afterwards ratified in order to be binding upon the others. Jenness v. Carleton, ante, p. 343. Whether such authority was given in this case, or subsequent ratification by Isaac N. Jenness in order to bind him, should have been submitted to the jury under proper instructions. We can imagine no possible theory which could justify the court in directing the jury to render a verdict in favor of the plaintiff for the amount claimed. The judgment must be reversed with costs and a new trial ordered. The othér Justices concurred.

Per Curiam. Mandamus to compel tbe police justice' to entertain a complaint for embezzlement of county funds, made by Calvin B. Crosby, treasurer of Wayne' county, against Christopher Apel, a ward collector of Detroit. The police justice declined to receive the complaint,, which was otherwise regular, on the ground that he had no jurisdiction of the offense set forth, but that it should be prosecuted in the Becorder’s court on complaint as provided by section 20 of chapter 6 of the revised charter of Detroit of 1867. ■ Held that though the collector was a city officer for some purposes, he was not for all, and as the money embezzled did not belong to the city, but to the county, the offense was within the general criminal jurisdiction of the police justice under the general statutes punishing embezzlement. Mandamus granted.

Campbell, C. J. Brooks having been ordered as receiver to pay over certain moneys to relator within forty'days, refused on application within that time to pay it, claiming the full time. After its expiration, he refused to do so on the ground- that on the same day he had been served with garnishee process issued by a justice of the peace, returnable eleven days thereafter.- On an order to show cause why he should not be attached, -he showed -that under this garnishment he had -made a disclosure of the facts before, the - justice, before whom no further action was had, and respondent still held the money. On this showing, he was ordered to pay over the money to relator or stand committed. From this order he appeals. The custody of a receiver is the custody of the court, and the law is well settled that no one can lawfully sue him without leave of the court which appointed him. It would lead to great confusion if such an officer were to be subject or were to be at liberty to take the funds in his official custody into any other tribunal, which could have no power to discharge him, to settle his accounts, or to punish him for collusion. If justice requires leave to sue, the court it may be presumed will grant it. But the eases are substantially uniform in holding that he cannot be garnished or otherwise reached without leave. High on Injunctions, §§ 137, 151; Field v. Jones, 11 Ga., 413; Columbian Book Co. v. De Golyer, 115 Mass., 67; Kerr on Injunctions, 193 and notes; Angel v. Smith, 9 Vesey, 335; Noe v. Gibson, 7 Paige Ch., 515. Such seems to us to be the only practice which will save clashing among courts, and give to every court in equity that full control over its own officers which is necessary until they are finally discharged. In Voorhees v. Sessions, 34 Mich., 99, the same argument was urged that was presented here, that the money having been deposited by the receiver with the register in a litigation which had come to an end, the custody was not official. But it was held the officer, until it was actually paid over, held it officially, and that it would be against the statute prohibiting garnishees, against public officers to allow it to be meddled with. The equitable doctrine against interfering with receivers is quite as broad .as the statute, and rests on the same policy. We think the order was correct, and it must be affirmed with costs. The other Justices concurred.'

Per Curiam. Mandamus will not lie to compel a circuit court to proceed to trial when a bill has been filed and injunction allowed to restrain it. The sufficiency of the bill cannot be reviewed collaterally, whether the bill is in the same or another court.

Campbell, C. J. Austin, as grantee of the heirs of Benjamin F. Bush deceased, brought this suit to establish a trust in certain lands in Kent county, entered by Bush at the State land office in 1865, and patented to Knapp as alleged assignee of the certificate, July 19, 1871. Knapp conveyed to Dean January 16, 1877, having previously, November 15, 1872, mortgaged the land to Joel A. Simonds for $2,000, of which $1,000 remains unpaid. Dean on the 8th of February, 1877, mortgaged to Briggs for $500. Knapp’s assignment on which he got out the patent was obtained through a series of mesne assignments purporting to have been from Bush to Silas A. Cole, from Cole to James A. Smith, from James A. to Canton Smith, and from Canton Smith to Knapp. The assignment to Cole is claimed not to have been genuine. Upon this there is no very good ground for dispute. It was delivered — if delivered at all — a considerable time after Bush’s death, and there is no question, we think, of .its fabrication. It is not important to know who forged it, as it was not done by the heirs who were minors, nor have they profited by it. There can be no such thing as a Iona fide holder under a forgery, whose good faith gives him any rights against the party whose name has been forged or his heirs. And while we think the testimony indicates that' Mr. Knapp had enough knowledge to put him on inquiry, yet this is not material, inasmuch as he could gain no rights with or without notice. He took his patent from the State in trust for the heirs of Bush. But having obtained the state patent which invested, him with the legal title, we think the good faith of" his grantees becomes very important. A bona fide purchaser under the patent is entitled to protection. This makes it necessary to consider the antecedents of the parties.. A suit was brought in- 1875 by one James Johnson against Knapp concerning this same land,_ in which Johnson claimed as purchaser at a sale had for forfeiture by reason of non-payment of interest to the State. It then appeared that James A. Smith had redeemed under the Bush contract. Johnson contested his right to redeem, because of the forgery of the assignment under which he claimed. But as Smith was guardian of the minor heirs it was held by this court that if the assignment was genuine he could redeem in his own right, while if forged, the redemption by him as gaardian would be valid and .enure to the heirs. On this ground we decided against Johnson. Johnson v. Knapp, 35 Mich., 307. Dean was a witness in that case and knew what the- controversy was. The evidence is strong that even before the issue of the patent he knew that there were disputes concerning the genuineness of the Cole assignment. He certainly knew it before he took, his title. He io not a purchaser in good faith without notice. The evidence satisfies us that Briggs knew nothing of the difficulties until he took his mortgage. It was given in good faith partly for an old and partly for a new debt, and we think he should-be protected. There is no evidence whatever impeaching the Simonds mortgage. In our opinion neither Knapp nor Dean have any equities, and each of them has succeeded in obtaining on mortgage very much beyond any advances. Without considering, therefore, whether such advances could under the circumstances of this case become equitable charges, they are counterbalanced by the profits received. This complainant is only interested in the lands. We think the court below erred in dismissing the bill as to Knapp and Dean, and that as to them the relief prayed should have been granted and conveyances decreed. Knapp was a proper party as the original wrongful patentee, and having defended on the merits is with Dean liable for the costs of both courts. As to Simonds and Briggs the decree dismissing the bill must be affirmed with costs. The other Justices concurred.

Per Curiam. The jury law makes jury fees in courts of record with a seal payable out of the county treasury. This is applicable to the Superior Court of Detroit; affirming Covell v. Treasurer of Kent County, 36 Mich., 332.

Graves, J. Alverson sued out an attachment from a justice of the peace of the city of Manistee against Dennison for a civil debt and it was delivered to the city marshal for service. That officer returned that he had served the writ personally, but made no statement as to the place or the particulars of the mode of service. He did not say the service was in the eity. Dennison made no appearance, but Alverson appeared by counsel and took judgment. Dennison then carried the case by certiorari to the circuit court and obtained a reversal and Alverson now asks a reversal of that judgment on writ of error. The judgment of the circuit court cannot be disturbed. The return of service in the attachment gave the justice mo jurisdiction and hence the result below was just. The marshal of Manistee has no general authority to serve process. Section 4 of title 3 of the charter (Vol. 2, Laws of 1869, p. 381) confines his power to process in favor of the city or of the people of the State, and this is the extent of it, unless we concede what there is room to question, that section 1 of title 2, as amended in 1871 (Vol. 2, Laws of 1871, p. 242), gives him further power. If, however, the amended section is allowed to have that effect, it is careful to limit his right to make service to the city limits. As the case was not on behalf of the city or of the people he had no right to make service any where unless authorized by the amended section referred to, and even then nowhere outside the city, and if we concede his competency to execute process as between these parties, the case is not aided. The justice had no power to proceed without proper evidence that the defendant was amenable to his jurisdiction, and this the return did not show, and as there was no appearance, there was no waiver or admission. It did not appear that Dennison was where he could be lawfully served by the marshal, and it was not a fact to be presumed in favor of the proceeding. The law required affirmative proof. The power of the court is limited and special and the authority of the marshal is in any view not general, but confined to particular cases and occasions and qualified by conditions. It is due to counsel to say that no claim was set up that the amended section had any bearing. We thought it might be well, however, to notice it. That the evidence of service was insufficient to confer jurisdiction on the justice is established by overwhelming authority. Among other cases see Hartford Fire Ins. Co. v. Owen, 30 Mich., 441; Denison v. Smith, 33 Mich., 155; Clark v. Adams, id., 159; Clark v. Lichtenburg, id., 307; Smalley v. Lighthall, 37 Mich., 348. The judgment must be affirmed with costs. The other Justices concurred.

Per Curiam. In this case, counsel when taking testimony and also in the preparation of their briefs for argument in this court, referred to and treated the books of the firm as though they had been formally introduced in evidence, and used upon' the hearing in the court below. Yet they have not been returned to this court, and the references thereto in the briefs are of no assistance to us whatever. As the case comes here many of the accounts in dispute are left in very great doubt, notably so the claim for $1,000, which although not appearing upon the cash book, yet would seem, or at least a portion thereof, to have been paid out for the benefit of the firm. Under the circumstances we think it better to refer the case back to the circuit so that the parties may take such action as they may deem proper in order to present the case in a clearer ■ light, as we do not know that the case is presented here in the same way it was in the court below.

Marston, J. A careful examination of the record fails to show that plaintiff in error has any cause of complaint. The court certainly charged the jury, as to the right of an officer to make arrests without warrant for breaches of the peace, as favorably as common law rules would warrant, and we are not at present prepared to say that an ordinance of the city of Grand Eapids could authorize arrests without process in cases not justified by common law principles. The evidence on the part of the plaintiff tended to show that at the time of the arrest there was no disturbance, either actual or threatened, while that on the part of the defendant tended to show not merely a reasonable and probable apprehension of a violation of the ordinance, but an actual disturbance, and the jury was charged that under such circumstances, if a disturbance' was found to exist, defendant was justified. The court was requested to charge that if there had been a breach of the peace, before defendant arrived, and that plaintiff was about to renew his disorderly conduct, and continue the said breach in presence of the officer, then defendant would be justified, in arresting him, even though the disturbance had temporarily ceased before defendant came on the ground; also, if the jury found as matter of fact that plaintiff had been guilty of a breach of the peace before defendant came where he was, and defendant knew the fact, and had reasonable and probable cause to believe plaintiff was about to renew his offense, then he was' justified in arresting; also, that if the officer received information from the bystanders that there had been a tumult and that plaintiff was the cause of it, of which fact plaintiff was after-wards found guilty, and plaintiff in presence of defendant made use of language indicating an intention on his part to continue the disturbance, then defendant had a right to arrest without process. These requests were refused, and under the facts in the case, we think properly. There are many loose general statements in the books as to the right of officers to make arrests without warrant. That they have a right to arrest for breaches of the peace committed in their presence is conceded by all. It is equally clear that they cannot arrest for a past offense, not a felony, upon information or suspicion thereof, although expressions may be found which would seem to assume such power. How far or when they may interfere by an arrest to prevent a threatened breach of the peace is not equally clear. We are of opinion that a threat or other indication of a breach of the peace will not justify an officer in making an arrest, unless the facts are such as would warrant the officer in believing an arrest necessary to prevent an immediate execution thereof, as where a threat is made coupled with some overt act in attempted execution thereof. In such cases the officer need not wait until the offense is actually committed. To justify such arrest the party must have gone so far in the commission of an offense that proceedings might thereafter be instituted against him therefor, and this without reference to any past similar offense of which the person may have been guilty before the arrival of the officer. The object of permitting an arrest under such circumstances is to prevent a breach of the peace, where the facts show danger of its being immediately committed. A reference to some of the authorities may not be inappropriate. In Regina v. Mabel, 9 C. & P., 474, the jury was charged that, under the circumstances stated by the policeman, he had no authority to lay hold of the defendant unless they were satisfied that a breach of the peace was likely to be committed by the defendant on the person in the parlor. In Timothy v. Simpson, 1 C., M. & R., 757, the plea justifying the imprisonment alleged that an affray had been committed, and it appeared that there was danger of its immediate renewal. In Grant v. Moser, 5 Mann. & G., 123, it was said there should he a direct allegation either of a breach of the peace committing at the time, or that a breach had been committed and that there was reasonable ground for apprehending its renewal. In Baynes v. Brewster, 2 A. & E. (N. S.), 384, a plea to a declaration for false imprisonment was held bad which showed that the violent and illegal conduct was over, and it was not stated nor did it appear that it would have been repeated if the apprehension had not taken place. In this case Williams, J. said: “It is not a question, in this case, how far a constable is justified in interfering where an affray is going on in his presence: but no principle is more generally .assumed than that a warrant is necessary to entitle bim to interfere after the affray is over. It is otherwise where the facts shew that the affray is practically going on. That is on account of the obvious distinction, as to public danger, between a riot still raging and one no longer existing.” Wightman, J. in speaking of the right to arrest during the affray, and while there is a disposition shown to resist it, quotes from Timothy v. Simpson as follows: “Both cases fall within the same principle, which is that, for the sake of the preservation of the peace, any individual who sees it broken may restrain the liberty of him whom he sees breaking it, so long as his conduct shews that the public peace is likely to- be endangered by his acts.” In Wheeler v. Whiting, 9 C. & P., 262, Patteson, J. said: “the defendant pleads that the plaintiff was making a disturbance in the house, and ready and desirous to commit a breach of the peace, whereupon he gave him in charge to the policeman, to be dealt with according to law; the policeman, however, was not justified in taking him, unless he saw som& breach of the peace committed: on a charge of felony it would be different;” and the learned justice doubted whether a plea which stated that the plaintiff was intending to commit a breach of the peace was good. In Howell v. Jackson, 6 C. & P., 723, Parke, B. distinctly and clearly instructed the jury that to make out the defense they must be satisfied that plaintiff had committed a breach of the peace, and that the watchman saw him do so. In Knot v. Gay, 1 Boot (Conn.), 66, it was said an arrest might be made to prevent a b:each of the peace which was about to take place. In The State v. Brown, 5 Har. (Del.), 507, it was said: “A peace officer, such as a constable or sheriff, has the right to arrest, even without warrant, a person concerned in a breach of the peace, or other crime; or when he has reasonable ground to suspect the party of such offence.” Clearly this last clause does not state the law correctly in not limiting the right to cases of felony. In McCullough v. The Commonwealth, 67 Penn. St., 32, it was •said: “A constable may justify an arrest for a reasonable cause of suspicion alone,” citing in support Russell v. Shuster, 8 W. & S., 309, which was a case of suspicion of felony. In Commonwealth v. Carey, 12 Cush., 252, Shaw, C. J., said: “that a constable or other peace officer could not arrest one without a warrant, for a crime proved or suspected, if such crime were not an offence amounting in law to felony.” Other c'ases might be referred to. There is little danger of being misled by the cases in which it is held an officer may make arrests to prevent a threatened breach of the peace. The interposition in the case of merely threatened violence is not for the purpose of an arrest in the ordinary sense, but as a peace officer to prevent a disturbance or breach of the peace under a present menace of violence. The judgment must be affirmed with costs. The other Justices concurred.

Per Curiam. Appeals from these proceedings are allowable in the same manner as on judgments rendered by justices of the peace. Comp. L., § 6718. The circuit court has power to hear applications to extend time for appeal, when the judge is satisfied that the party has been deprived of his appeal by causes beyond his control. In this case the party was prevented by severe sickness, which would be sufficient cause to confer jurisdiction upon the judge to exercise its power. The allowance of the appeal being discretionary, when jurisdiction exists at all, it must stand, inasmuch as such discretion is not open to review. Motion denied.

Cooley, J. Defendants in error brought suit upon an account for goods sold. Plaintiffs in error defended. When the cause was called for trial, counsel for the plaintiffs below stated in opening the case to the jury that he supposed the account would be admitted, and turned to defendant’s counsel, who at first said in effect, “You will have to prove your case,” but immediately afterwards said, “I am informed by Mr. Seager [one of defendants below] that the bill is correct; that is, the amount of the bill; and that he told you so. If that is so we will admit it. The amount of the bill is $745.41.” Plaintiff’s counsel then took the stand to testify to what took place between himself and Mr. Seager. The following is his evidence in full: “On the first day of May last Mr. Seager came to my office at my request and I showed him this bill (being the bill above described), and also the note for $632 (being the note above described). I asked him about the correctness of this bill. He said ‘the bill is correct, but we paid - for it by giving Smith & Harris’ note or notes,’ I don’t know which. ‘ The bill is correct; we paid it by giving Smith & Harris’ note.’ That is what he said in my office. I took a note of it at the time and wrote it down here on the bill in pencil. That is the bill which I showed to Mr. Seager just now, which Mr. Chadbourne (defendants’ attorney) said was correct.” Whereupon defendant’s attorney cross-examined the witness as follows: “Q. Are you sure that Mr. Seager told you that the bill was correct, but was paid for by the notes of Smith & Harris ? A. He may have used the words ‘we claim that it is paid for by the notes by Smith & Harris.’ Q. Did not Mr. Seager say to you_ in substance that it was a bill for which he was not responsible except to Smith & Harris? A. No, I don’t think he did; but he said that he was advised in the matter, and he did not believe that he was responsible; he didn’t think he was, and he was so advised. Q. Now, in talking with you in that conversation, did he not say in substance that_ the goods were not furnished upon the credit of Harris, Seager & Co., but on the credit of Smith & Harris, and that he had settled with Smith & Harris, and considered himself not liable to plaintiffs? A. I think during the conversation he may have made such a statement. 1 think he did, that he claimed such.” The plaintiffs thereupon, without further evidence, submitted the ease, and the judge left it to the jury to say whether the evidence made out a ease for the plaintiffs. The jury found for the plaintiffs the amount of their bill. We find no evidence in this case that could properly have been left to the jury. Mr. Seager admitted no liability; he contested it throughout. He admitted that plaintiffs had a bill for goods sold to a certain amount, but he denied that it was a claim against the defendants. His admission went no further than this. It fixed' the amount of the claim, provided the liability was otherwise established; but to assume that he intended to admit the liability would be to assume that he intended to stultify himself, for the liability was the very fact he proposed to contest. There is no room for a suggestion that defendant’s counsel on the trial intended an admission as broad as is now claimed; if he had been so understood it would be reasonable to conclude that plaintiffs would have rested upon his admission instead of going farther. But when they went farther and drew out exactly what the admissions of Mr. Seager were, it was not allowable to ask the jury to draw conclusions from those admissions which were directly opposed to their manifest intent and meaning. Seager did not even admit that defendants were ever liable; and he expressly said he had taken counsel and did not believe they were responsible. To permit a jury to hold them responsible on such evidence is to leave them at liberty to create a demand on evidence which negatived it. The circuit judge was requested to instruct the jury to return a verdict for defendants, and he should have complied with the request. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Cooley, J. Complainant files his hill as one of the heirs-at-law of Hugh Smith, late of the county of Wayne in this State, deceased, to set aside a conveyance of certain real estate made under an order of the probate court for the county of Wayne by the administrator of the estate of said Hugh Smith for the purpose of paying debts. The sale was made September 28, 1867, to one Czar Jones, and was confirmed by the probate court two days thereafter. Jones conveyed the land to one Elliott in October, 1867, and Elliott to the administrator in February following, and the latter, in the same month to the defendant Davidson, who immediately went into possession. The sale is claimed to have been void, first, because the notice of sale given by the administrator was not published for the time required by the statute; and second, because the pretended purchase by Jones was merely colorable, and was really made in his name for the benefit of the administrator, and in order to defraud the estate. The good faith of the purchase by Davidson is not assailed, but it is claimed that he had by the record constructive notice of the defect in the notice of sale, and sufficient notice to put him on inquiry as regards the good faith of the purchase by Jones. The bill was filed after Davidson had been in possession for more than five years. The statute (Comp. L., § 7137) limits the time for bringing “any action for the recovery of any lands” or for mailing entry thereon to five years “where the defendant claims title to the land in question, by or through some deed made upon a sale thereof by an executor, administrator, or guardian” under the order of a court of competent jurisdiction. Had the complainant, therefore, instead of bringing suit in equity, instituted a suit in ejectment, it is clear that his remedy would have been barred. . Toll v. Wright, 37 Mich., 93. But if barred at law, it must be held barred iniquity also. The policy of the statute, which was to quiet all titles derived from such sales after five years’ peaceable possession under them, cannot be evaded by the party electing one forum rather than another for litigating the rights which he disputes; but equity by analogy will apply the limitation to his case. McLean v. Barton, Har. Ch., 279; Jenny v. Perkins, 17 Mich., 28; McKinney v. Miller, 19 Mich., 142. The decree, which dismissed the bill, must be affirmed with costs. The other Justices concurred.

Marston, J. There is a fatal error in this ease. The writ, which was made returnable August 6th, was returned, not personally served on defendant, August 5th. Afterwards the sheriff of his own motion made a farther return. This he could not do without leave of the court properly granted. The judgment must be reversed with costs of both courts. The other Justices concurred.

Campbell, C. J. This controversy, which is chiefly to obtain a settlement of partnership affairs, contains two main branches: First, a cause of action against Daniel H. Waters for such accounting; and second, a claim against Bemington for the use of certain property which had been previously used by the same partnership. These for the purposes of the decision will be kept separate as far as may be. The complainant’s case is in brief this: Her former husband, Elijah W. Waters, was for some time before his death in partnership with his brother, Daniel H. Waters, and the business involved in this cause was chiefly the manufacture and sale of wooden ware of various kinds. Most of this was made on premises used with water-power derived from a canal in Grand Bap- ids, and there was a saw-mill auxiliary to the other machinery. A majority of the work was called box and rim work, made of thin wood bent into circular forms, for boxes, measures and similar ware. The land and buildings belonged to the several partners in common, but the power was rented of a company owning and managing the canal. The record contains a history of earlier dealings which are not important, except perhaps to throw light on some collateral inquiries not directly involved in the merits. The partnership in question was controlled by written articles not executed until April 19, 1866, which gave each partner an equal right and interest with his co-partner, and which showed each to have then contributed $10,901.33. By these articles it was covenanted that the surviving partner, upon the death of either, should upon payment as therein provided, become sole owner of all the joint property, real, personal and in action. On June 7, 1867, a full settlement was made to that date. No further settlement was made during the life of Elijah. After his death certain dealings were had which will be referred to in their place. During the latter part of 1867, Elijah was confined to his house and unable to take any active part in the business. He died January 11, 1868, leaving a will made November 4th, 1867, whereby he bequeathed and devised to complainant, his wife, all his property, whether partnership or not, that was held jointly with Daniel, to hold for life in trust to the amount of ten thousand dollars, so as to provide $5,000 to be invested for each of her two children, and the remainder for her own benefit. But she was not to break in on the capital beyond the $10,000. The personal assets not held jointly with his brother were to go absolutely to the wife. On the 16th of March, 1868, complainant was made executrix. About that time and shortly after an inventory was made of the estate in the probate court in which the interest in the partnership effects ■ was set down at $10,940.81. This is but a few dollars more than was originally put in. This inventory was made at what the appraisers called the actual cash value. Upon some items they discounted paper down so as to make it equivalent to a ten per cent, investment to its maturity in the future. An important controversy arises as to the correctness of the property valuations, as will appear hereafter. A partnership inventory made up $28,980.62, less $5,100 debts. At about the same time Daniel Waters represented to complainant that he was justly entitled to payment for his services in managing the business during his brother’s illness, and she turned over to him a partnership claim against one T. T. Davis, the precise value of which is a little uncertain, being spoken of as $8,500 and as $3,100. It was reckoned below at $3,100. It is claimed that this was a doubtful demand. It seems, however, to have been made available. It was not included in the inventory. Daniel Waters did not exercise his right of taking the property under the partnership articles, but continued doing business apparently in the usual way until September, 1868, when he- procured a transfer from complainant of all the partnership interests in personal assets on the assumed basis of the March inventory for $2,790.31, a majority of which he paid by time notes drawn without interest, which, however, he took up in the ensuing December. At the time of purchasing out the personalty he took a lease of the building and machinery for $600 a year. Two quarters’ rent was paid. In December, 1868, complainant married one Frederick G. Heath, and was soon thereafter appointed administratrix, with the will annexed, of the estate of Elijah • W. Waters. Immediately after purchasing from the administratrix Daniel Waters joined with him in business, Alonzo Clements, his foreman, and Oliver S. Waters, his brother, and they continued to carry on the same business until December, 1869, when a change was made. Daniel Waters then sold out his interest in the building and fixtures that had been used to defendant Eemington, who went into possession of the whole for similar purposes. Daniel Waters and his partners organized a corporation known as the Michigan Barrel Works, where work of the same general character has been carried on ever sjncei Eemington subsequently, and while this suit was pending, made an arrangement whereby he was allowed to keep possession in consideration of paying complainant what the premises were worth. As the final decree held him responsible for nothing more than this rent, the only question, so far as he is concerned, is whether he has been overcharged. The objection that he should not have been charged at all in •equity is not, we think, well taken. He was alleged by the bill and shown by the proofs to have had the use of property belonging to the firm of E. and D. Waters, and in the view we have taken of the other branch of the case might have been liable to some sort of responsibility enforceable in equity. The agreement to substitute payment of reasonable rent did not render the case defective, and we see no very good ground for declining to allow the amount to be fixed in this ease, especially as the testimony was introduced at much length on both sides at great expense and entirely without. any reasonable attempt to oppose the jurisdiction. We think the- amount not excessive. While the ■accounting charges the gross rent at $1,200 a year, it allowed Eemington for repairs and other outlays which reduced the rent to an entire sum of not much over ■$1,000 for two years and a quarter. This is very much less in our opinion than the net rent ought to have been on the proofs, and we think he has no ground of complaint. So far as Daniel Waters is concerned, the facts are conceded that complainant relinquished to him the Davis claim, released the personal assets, and leased him the half of the building and machinery. If those transactions were valid, there is no basis for this action. If, on the other hand, the relations of the parties were such that any one of these transactions was invalid, it would be difficult to sustain the rest. By the death of his brother, Daniel Waters while he became legally vested with the title to all partnership assets, became also a trustee to manage and dispose of them for the best interests of his deceased partner’s estate, and the estate was entitled to half of the resulting proceeds. He was bound to keep accurate accounts and to keep the executrix informed correctly of all that concerned her. The agreement with complainant to allow him to retain the Davis claim cannot be sustained. It was not only illegal, but we think also the testimony indicates unfairness and a fraudulent advantage taken. According to defendant’s own statement his services for which this claim was transferred to him ran back some two years, and would thus cover all the time included within the written articles. He represented and alleges that complainant admitted an understanding on the part of Elijah Waters to compensate him for his charge of the business during the latter’s sickness. The articles of partnership contain no such provision, and the settlement of June, 1867, which was within about six months before Elijah’s death, would at any rate have disposed of any such claim up to its date. Complainant evidently depended on what he said on business subjects, and showed a readiness to conform to his wishes that can only be explained by that confidence. She was not yet qualified as executrix and had no power to deal with the assets, so far as we can reach the dates from the record. The transaction was certainly had before any inventory was taken, because the Davis claim was not taken into the account in estimating the assets of the estate. It is certain that at this time Daniel Waters had no legal claim against his brother’s estate for personal services. So long as a partnership continues, the sickness or inability of a partner is one of the risks incidental to the business, and works no forfeiture or deduction. If Elijah Waters himself had seen fit to pay Daniel for his services, it was outside of the articles and would have been a mere gratuity. Daniel was bound at all events to use his best efforts and judgment in promoting the common enterprise, without further compensation than his share in its profits. The executrix had no right to give away the property of the estate, even if there had been reasons which would have operated on the generosity of the deceased. The procurement of this transfer and its suppression from the inventory operated as a fraud in law, whether fraudulent in fact or not. It is not necessary, therefore, to dwell upon the facts, which were not such as to commend themselves. We think, therefore, that defendant Waters was bound to account for the Davis claim. The lease and the transfer of the firm assets were in effect one transaction, and brought about in substantially the same way, and must stand or fall together. It has already been stated that under the articles of co-partnership Daniel Waters might have taken the property of the concern, on the terms mentioned in the agreement. No method was there pointed out for determining their value. As surviving partner he possessed exclusively the means of determining just what the assets consisted of. It was his duty, before making any bargain or other dealing with the representative of Elijah’s estate, to put her in as' complete a condition of knowledge as himself. This would necessarily include not only a statement of assets and liabilities, but such information concerning the business as would indicate the value and advantages of the concern. This duty would require him in dealing with a woman not thor oughly familiar with such matters to use additional care to prevent her from being deceived or imposed upon. A trustee cannot put himself at arm’s length, and compel the beneficiary to protect herself. He is bound to protect her against his own imposition as well as against wrong from any other quarter. And the slightest pressure or unfairness would authorize her to complain. In the present case the fiduciary obligations were more extensive than usual. Complainant herself was acting in a fiduciary capacity, of which he was fully aware; and any dealing with her in the wrong of the estate would affect both parties with an equitable responsibility. The facts in this record make out a strong case of wrong-dealing. The evidence indicates that during his lifetime Elijah Waters derived a liberal living out of the business, and there is no reason to believe he was not justified in so living. He made his will about four months after a full settlement, and could not have been ignorant how matters stood. This will remained unchanged at his death, and he had not become incompetent to change it. He understood when he drew this will that the business was prosperous enough to allow ten thousand dollars to be taken from it and invested, without impairing the comfortable maintenance of his wife and children. It is incredible that such a business could be not only seriously impaired, but almost destroyed, without change of circumstances or management, in the course of the few weeks which intervened before the transactions complained of began. After Elijah’s death the defendant Daniel furnished means very sparingly to complainant, and she was given to understand the. business was not flourishing or profitablei Defendant represented that the concern had no money in bank, when in fact there was a considerable deposit. The money on deposit from month to month cannot be accounted for unless the business was active. And if defendant was at that time merely closing it up he was clearly bound to pay over to complainant, as fast as realized, her share of all money not needed to pay debts. But the pretext that he was merely endeavoring to close it, has no foundation in the proofs. Reference has been made to the partnership inventory of March, as well as to the probate inventory. The latter was more general than the former, but was made under the same management and shows to some extent how the appraisers acted. In the probate inventory a mortgage running for several years, and drawing ordinary interest, and which was entirely secure, was by some peculiar freak of the appraisers, instead of being set down according to the facts, and without any mention of its amount, put down at not much over half its face. The same course was evidently pursued concerning the partnership inventory. The accounts belonging to the firm are not put down at their face, either with or without deduction, but are set down at such arbitrary sums as the appraisers saw fit to assume as their cash value. In the subsequent dealings with complainant, defendant was particular in obtaining a statement that while he took these accounts at less than their face, they were taken at his risk and on terms satisfactory to complainant. Such an explanation is itself very suspicious. We have no means afforded us of knowing how much was due on these accounts, nor at what rate of discount the appraisers cut them down, nor what allowance, if any, they may have made beyond this for their doubtfulness. The inventory is therefore untrue, and the extent of its misrepresentation is unknown. Nor can.we have any assurance that there may not have been accounts ignored altogether, as not of any value. The omission of the Davis claim, which turned out to be available, suggests such possibilities. The remaining assets, instead of being set down at their merchantable value, were, according to what we 'deem the most reliable testimony, put down in some, if not in all' cases, at their actual cost. If properly set down, the amount of the assets would have been much-increased. In September, when the business had been carried on all the season, and when a large amount of wares had been made and either disposed of or on hand, defendant procured from complainant a transfer of all the-personal assets of the concern for $2,790.31. This amount was reached by taking the March inventory as a basis- and deducting from its face a sum of $5,100, which defendant represented he had paid upon debts. No showing was made of what had taken place in the mean time, either in the way of collections, manufactures or sales, and it seems pretty evident that defendant made complainant believe there had been nothing done worth mentioning. She was not even allowed the six months’ interest which accrued on the money items from March to September, and was led to the conclusion that Waters and his future associates were going on without any idea of profit, but merely to hold their ground until then-rivals were crowded out. The pinching process to which complainant had been exposed during the year had prepared her to give up her interest on such terms as should be offered. The larger part of the purchase money was put into time notes drawing no interest, the cash value of which, if reckoned by the previous standard of the inventory, might have been very much reduced. We can draw no conclusion from the testimony in the case concerning this transaction except that it was fraudulent and unconscionable. Laying aside all the-proof hereafter referred to concerning sales and profits, the defendant, instead of acting as an honest trustee, concealed the whole details of the business from complainant and induced her to act not only on a practically fictitious inventory, but upon positive misrepresentations 'concerning the financial condition of the business. He , obtained also a lease' on terms which were, to say the least, sufficiently favorable, had he complied with them. Having thus secured control of the entire business and assets, at a gross undervaluation, he went on until December, 1869, in company with Clements and Oliver Waters, both of whom must have known substantially what was the condition of affairs, and while they all profess that the venture was a failure, they went out of it into a new and large similar enterprise under circumstances showing these pretenses to be unfounded. At the same time Daniel Waters found in defendant Bemington a purchaser of the apparatus of the business from which he was changing, ready to incur the same risks of ruin, and to invest considerable further money in the venture. We are satisfied that the dealings of Daniel with defendant were both constructively and actively fraudulent, and that they must be avoided. The use of the property thus wrongfully appropriated must be regarded as a continued use of the partnership assets never accounted for, which he may properly be decreed in this suit to make good to complainant. Such was the view of the circuit court, which ordered an accounting. Before considering the result there arrived at, some questions of practice require notice. The long delay of these proceedings led to some official changes in the office of commissioner. After the accounting was substantially finished, an appeal was taken to the circuit court from the decision of the commissioner refusing to open the proofs to such an extent as defendant desired. From the decision of the circuit court approving the commissioner’s action an appeal was brought into this court and dismissed for want of jurisdiction, because the proceeding was interlocutory. Before the proceedings could be carried very far after their renewal below they were arrested by a removal under an illegal statute into the Superior Court of Grand Bapids, and suspended until set in motion again by the mandate of this court. The circuit court commissioner who had general authority to act in the premises was disqualified; and the court thereupon referred the matter to Mr.. Wolcott, who had conducted the accounting to its close before, and whose report only lacked a formal completion when the proceedings were stayed by the unauthorized action before mentioned. It is now urged, as it was urged in the circuit court, that Mr. Wolcott was disqualified, — -first, as not being a commissioner, and second, as prejudiced. There is no ground for the first objection. The statute is too plain to be open to doubt. The circuit court, when a commissioner cannot act, may refer the cause to any “suitable” person. It is for the court to decide who is suitable. Neither is there any weight in the second objection.. It rests on the claim that Mr. Wolcott, after he had gone out of office, and when he had at the time nothing more to do with the case, in which the testimony and accounting were substantially complete and the report drafted, informed a client what in his opinion would be the proximate result in the circuit court. If any further action of Mr. Wolcott could have imperilled any one’s rights, there might have been an impropriety in subjecting them to his action. But in this case the testimony had already been taken, and the decree of the court must be based upon that, and not upon the commissioner’s views, unless acquiesced in or found correct. The action of the commissioner is merely auxiliary to the conscience of the court. The exceptions to his conclusions made it necessary for the court to-decide on its own view of the merits, and the commissioner’s decision ceases to have any importance of its own. The materials for the judgment of the court are all we need consider. We shall not be required to devote much attention to-sifting the mass of prolix testimony which the misconduct of defendants has introduced into this case. If' defendant Waters had performed the duty which common honesty required of him, the production of his book® ■would probably have made the accounting brief and simple. It would also have put an end to any question of fraud, if his conduct had been, as he claims, what it should be. No stronger evidence of probable fraud could exist than the obstinate and offensive manner in which every attempt to get at the real state of the partnership business was resisted, not only by Daniel Waters, but by his associates and his banker. The latter, who seems to have been honest in his remarkable notion that banking business is privileged from scrutiny, was probably free from any wrong design. The spirit of the others is manifest. The effect of this scandalous conduct was to protract the inquiry for several years, until, as is now claimed, the books have been destroyed. And in this condition of affairs defendant contends that his. general denials in regard to profits should exempt him from any decree. And it is urged that by failing to* have him punished for contempt or compelled to answer,, 'complainant lost the means of proof. We are certainly convinced that it is to be regretted the conduct of defendant was not punished severely. But it is not very plain to us how far such punishment would have advanced the accounting. Complainant had the right to introduce the best evidence at her command and make out as good a case as she could. Nor do we t.bink much attention should be paid to defendant’s testimony. The benefit of cross-examination is an essential condition to the reception of direct testimony. There are cases in which a failure to respond on cross-examination will justify the exclusion of at least so much of the direct testimony as it might have qualified. It must always damage its credit. When the witness who evades or refuses cross-examination as the chief party in interest, or one who is plainly seeking to screen him, it is no more than common justice to disregard his testimony in his own favor where it needs explanation. We may and should assume that when he refuses to explain what he can explain, the explanation would be to his prejudice. And when, as in this case, his testimony is directly falsified by facts well proved, the reasons for rejecting it are very strong. The referee made up his estimates from bank balances, income returns, and reports under the internal revenue laws showing the amounts of goods manufactured in various periods. These reports of manufactures cannot be supposed to have been overstated. It was to the interest of all parties to place them as low as possisible. On these estimates of goods made up he reckoned a percentage of profits which was based on the testimony of disinterested witnesses. This assumed an average profit of twenty-five per cent. The bank and income statements were relied on as corroborating closely the correctness of this result. It was in defendant’s power for several years after suit was commenced, if not always, to show the exact profits of his business. His refusal to do so authorizes us to believe that he thought they would exceed anything that complainant could show. In our opinion the commissioner placed the profits quite as low as the proofs would have warranted. We are strongly impressed with the belief that the defendant has profited by his contumacious silence. But as complainant has not appealed we cannot enlarge the sum decreed. Compound interest was proper under the circumstances. Upon the argument it was suggested that an allowance ought to be made to complainant for the great expense and vexation of these proceedings, which we think counsel were justified in censuring in strong language. We did not then and do not now see how this can be done as the case stands before us. Without deciding whether it could be done in such a case, we do not see how we could allow it where no appeal has been taken by complainant, who must be regarded as satisfied with the decree below. The statute, however, provides expressly for damages on vexatious appeals, and we have on several occasions granted them where we regarded'the appeal as oppressive. Waterman v. Toms, 7 Mich., 78; Meyerfield, v, Stettheimer, 20 Mich., 418; Campau v. Campau, 25 Mich.,. 127; O’Connor v. Parker, 23 Mich., 22. We have always been reluctant to visit appellants with damages unless in plain cases of wrong. We think the present case comes within the purposes of the statute. All the trouble and expense have come from a willful violation of ordinary fiduciary duty in the first instance, and a persistent violation of the same duty in refusing to give the court means of arriving at the truth. We therefore affirm the decree with interest from the date of the balance ascertained, and with costs of this court against both defendants, and with five hundred dollars damages against Daniel H. Waters for his vexatious appeal. The other Justices concurred.

Cooley, J. Gongdon took proceedings before a circuit court commissioner to recover possession of a store which Benfey had held under him by lease. The proceedings were removed to the circuit court by appeal, and the errors relied upon here arise upon exceptions taken on the trial in that court. It appeared without dispute that Benfey had a written lease of the store for one year from July 18, 1876, at a rent of $1,000, and at the end of that time it was agreed between the parties that Benfey should continue to hold the premises at the reduced rent of nine hundred dollars. This agreement was not reduced to writing, but the evidence. of both parties was taken in respect to it, and it appeared therefrom that nothing was said about the time the holding should continue. At the end of a year Congdon testifies that he demanded possession of the premises, which Benfey refused to give; whereupon these proceedings were instituted. Benfey testified, on the other hand, that Congdon did not demand possession, but consented that his occupation should continue. One principal objection relied upon by plaintiff in error is that the circuit judge treated the agreement between Congdon and Benfey for a further occupation of the premises by the latter, at a reduced rent after the written lease had terminated, as an agreement for a single year, and declined to submit the question of time to the jury as one of fact. We think the court committed no error in this ruling. There was no material discrepancy in the evidence of the two parties. It appeared from what was testified by each that no time for the continuance of the holding was named. Benfey had a right to hold for a year, because the stipulated rent was an annual rent; and it must be inferred from this that he was to hold for that time. But this was as far as the inference could go. If he claimed a right to hold longer, the burden was upon him to show an agreement which gave it. It is also claimed by Benfey that when the year was up and he still remained in possession, he was entitled to the statutory notice as a tenant at will or at' sufferance. Comp. L. § 4304. No doubt he would have been entitled to it as a tenant at will had he held over by the express or implied consent of Congdon, but not other wise. Allen v. Carpenter, 15 Mich., 25. But Congdon denied any such consent, and if the jury believed him, Benfey in holding over was a mere wrong-doer. The question of fact was fairly submitted to the jury, and there is no ground for complaint on this branch of the case. We shall not undertake to determine in this case exactly what is meant by the statute above referred to, in giving to tenants at sufferance a right to the same notice to surrender possession as is given to tenants at will; but we do not think a tenant who wrongfully holds over for a short time becomes immediately entitled to such notice, or that any short delay in commencing proceedings against him can confer the right. The statute evidently intends a case of a holding where the occupant has some equities which would render it unjust that he be required to surrender immediate possession; but he cannot acquire such equities by a mere wrongful holding over, which is neither assented to nor acquiesced in. And that, according to Congdon’s evidence, which the jury appear to have accepted and believed, was the case with Benfey here. Several questions are made on the exclusion of evidence, but none of the rulings appear to us erroneous, and none involves any question requiring discussion. The judgment must be affirmed, with costs. The other Justices concurred.

Marston, J. This was an action brought to recover damages for injuries received while working in the saw mül of defendant. The evidence on the part of the plaintiff went to show that he had been working in and about the mill some fourteen days; that he was placed near the gang and had to carry slabs from the gang and place them on rollers; that when injured he had taken hold of a heavy slab, too heavy for one man to carry, and was pulling it, walking backwards; that while so engaged he accidentally stepped on a piece of wet bark and slipped back against the cog-wheels near the slab run; that his pants were caught and his leg drawn into the cog-wheels and severely and permanently injured; that he had not been warned or cautioned about these cog-wheels, and had never noticed them until after he was hurt, but that he could have seen the cogs if he had stopped work to look for them. Evidence was also given to show that these cogs should have been covered in order to be safe; that such wheels are generally covered in mills in order to prevent persons getting injured, and that it is dangerous to run them without being covered. Evidence was also given of plaintiff’s lack of experience and knowledge in such mills, and of the nature and extent of the injury received. No evidence was introduced on the part of the defendant. The court instructed the jury that these cogs being open, uncovered and dangerous, and plaintiff, with a knowledge of such facts, having continued at work, he was thereby guilty of such contributory negligence as would prevent his right to recover, and instructed the jury to return a verdict in favor of the defendant. It is very evident that the increased dangers to which persons are exposed in the use of machinery at the present day, have kept even pace with the progress made in the manufacture of new, improved and complicated varieties thereof, and the employer therefore who, in carrying on his business, uses such machinery, must take those precautionary measures which are usual and customary with careful, prudent men to protect his em ployees from all unnecessary dangers arising from the use thereof. He is to use that degree of care which every prudent man is expected to employ and does employ under similar circumstances in carrying on the same kind of business. Cooley on Torts, 556-7, and cases cited; M. C. R. R. Co. v. Dolan, 32 Mich., 513. The employer must also provide a suitable place in which the servant, exercising due care, can perform his duty without exposure to dangers that do not ordinarily come within the obvious scope of such employment as usually carried on. Coombs v. New Bedford, Cordage Co., 102 Mass., 572: 3 Amer., 506. A party entering upon a particular employment assumes the risks and perils usual thereto. Where the machinery used is not defective, either in its construction or from want of proper repair, and where the usual and customary means are adopted to guard against accidents, if wanting in either respect there is an increased risk, and if the servant is injured in consequence thereof, the master must be held responsible therefor. If, however, the servant, with full knowledge of the .facts, and understanding the increased risk occasioned ! thereby, in the absence of any promise by the master to [remedy the same, consents to and remains in the master's employ, then he voluntarily incurs such increased [risk, and if he suffers damages in consequence of an Jinjury received thereby, he will be without remedy. The ■fact that he remains in the master’s employ under such ! circumstances and with such knowledge, is what constitutes contributory negligence on his part. The master in permitting his machinery to be thus more than ordinarily dangerous is guilty of negligence; the servant with full knowledge thereof, by remaining contributes thereto. Cooley on Torts, 551-2, and cases cited. A person when employed and instructed to commence work at a particular place, as for instance in this case in a mill, is under no obligation, in order to protect him self from the charge of contributory negligence, to first go all through the building, and make himself familial* ■with each piece of machinery, and the danger he may incur in case he comes in contact with it in its then condition. It is sufficient for him that in entering upon the active discharge of the duties assigned him, he ascertains what he is expected to do, and the dangers directly connected therewith, and he has a right to assume that in the performance of that particular duty, reasonable facilities therefor will be afforded him, without coming in contact with other unforeseen or unsuspected dangers. Where the servant shows that the injury he received was in consequence of an increased risk, — one not ordimarily incident to the employment, — growing out of the master’s negligence, the burthen of proof is upon the master to show that the servant knew of and understood the increased dangers. Cooley on Torts, 661 et seq. Where the essential fact in a case is whether contributory negligence did or did not exist, and this depends upon the credibility of witnesses, or inferences from facts and circumstances about which .honest, intelligent .and impartial men might differ, such a case should be .submitted to the jury. Conely v. McDonald, ante, 150; Dublin etc. R. R. Co. v. Slatterly, 39 L. T. Rep. [N. S.], 265. Applying these rules to this case and it is clear the court erred in withdrawing it from the consideration of the jury. The plaintiff at the time of the injury was properly engaged in the active discharge of his duty. He testified that he had not been warned about these cogs, and had not noticed them until after he was hurt. Contributory negligence pre-supposes the doing of some act which ought not to be done, or the omission to do something which should be done. In other words, a want of due care. 5 Am. Law Reg. (N. S.), 405, n. . If he did not know of the exposed and dangerous condition of these cogs, then by remaining at work he was not doing some thing which he ought not to have done, and the effort he was making, at the time of the accident, to remove the slab, showed no want of due care on his part, but on the contrary, was commendable. Even had he known of the cogs and their unguarded condition, it would not thereby conclusively follow that he could not recover. Other facts and circumstances would have to be considered in connection therewith: his age, his intelligence, his experience and such like, so that the jury might ascertain and determine whether he fully understood and appreciated the danger. Reed v. Northfield, 13 Pick., 94; Whittaker v. West Boylston, 97 Mass., 273; also Coombs v. The New Bedford Cordage Co., supra, which in many respects resembled the present case. I am of opinion that the judgment should be reversed with costs and a new trial ordered. The other Justices concurred.

Cooley, J. The writ of certiorari in this casé is sued out to review the action of the drain commissioner in laying out and establishing a drain under the act “to provide for the draining of swamps, marshes and other low lands,” approved March 22, 1869, as amended by act No. 169 of 1871. General Laws of 1871, Vol. 1, p. 257. Among the requirements of the act last mentioned is one that the commissioner after making personal examination of the lands proposed to be drained, shall “try to obtain a release of the right of way and other damages from every person through whose land such drain or drains are to pass.” This effort was not made in this case. It appears from the report of the commissioner that he had tried to obtain such a release some three months before the application in this case was made, but that effort had no connection with this case, and cannot avail. It could have had no connection with this case, because no such case was then in existence. As the effort to obtain a release from the owners of lands is a condition precedent to any further step in the case, the proceedings which took place without it were invalid. Arnold v. Decatur 29 Mich., 77; Chicago etc. R. R. Co. v. Sanford, 23 Mich., 418. The proceedings must be quashed. The other Justices concurred.

Marston, J. While there was evidence in this case tending to show that a highway had been surveyed and laid out, also that work had been done thereon and the road traveled, yet the exact location of the highway as laid out, worked and traveled was disputed by the plaintiff herein. In other words, the plaintiff in certiorari claimed, as appears from the return of the justice, that the road was originally laid and traveled west of the section line previous to a survey made in 1856. Even if it were fully conceded that a road had been legally laid out, opened and traveled, yet where in proceedings like the present to ascertain whether there has been an encroachment thereon, if the exact location of the road is disputed, and the question of encroachment or not depends upon first ascertaining the location thereof, which is disputed, then the proceedings should be dismissed, as beyond the jurisdiction of the tribunal. That the location was in good faith disputed, there would seem to be no question, as the road if opened the full width, as now claimed and so found by the jury, would run through the orchard and destroy nine appletrees therein which have been set out since the highway was laid out and opened. The case comes clearly within previous decisions. Parker v. People, 22 Mich., 95; Roberts v. Highway Com'rs, 25 Mich., 23, and Campau v. Button, 33 Mich., 527. The proceedings must be set aside, an/d the finding of the jury reversed with costs to the plaintiff. The other Justices concurred.

Marston, J. The evidence in this case tended to .show that the note sued upon was given for liquors; that an agent of the plaintiffs below called at the place of business of defendant and took the order which was sent on to his principals in New York, by them approved and the liquors shipped. The court upon this theory of the case submitted the case to the jury in accordance with the rule laid down in Kling v. Fries, 33 Mich., 275. There was also evidence tending to show that the sale was made in Detroit by sample under an agreement that if the liquors on arrival did not equal the sample the purchaser might return them. Upon this branch the rule laid down in Webber v. Howe, 36 Mich., 155, was by the court given to the jury. Under the charge the jury before finding for the plaintiff must have found that the contract was made in New York. And a note given in Michigan for liquors purchased in New York would not be invalid. The judgment must be affirmed with costs. The other Justices concurred.

Per Curiam. Motion to dismiss appeal on the ground that the order appealed from was not an appealable order. The order was one for the allowance of temporary alimony, and was therefore interlocutory and not appealable, and the motion must accordingly be granted. The case, however, was really settled before the order for alimony was granted, and this order was for $50 to be paid as fees to counsel, and was made after the differences between the.parties had been made up. The parties became satisfied that the order was not appeal-able and agreed that the appeal was a nullity, and a motion for an attachment for non-payment was made. The court below refused the attachment, but allowed an execution in the attorney’s favor. Under all the circumstances it would be unjust to award costs. Appeal dismissed, but without costs.

Campbell, C. J. Complainant filed his bill to enforce his rights under two mortgages on property at Eaton Rapids, made by Jehiel and Huldah Toles, and owned by him, and long past due. One of them had been once foreclosed • irregularly, and that foreclosure is now out of the controversy. The bill contains some special aver ménts to reach Hannah and Wallace Toles, as setting up'rights derived under an old mortgage and its foreclosure, which are claimed by complainant to have been obtained under circumstances which subjected them to his equities. When complainant’s mortgages were made there was an older mortgage outstanding to one Houghton, covering the same property and an adjacent parcel, which latter had also been conveyed to a third party whose rights are not disputed, and whose land, on a foreclosure of the Houghton mortgage, could not, on well settled rules of priority, have been sold until the land mortgaged to complainant was exhausted. On the 28th day of January, 1876, publication was begun ■ of a foreclosure notice of a sale to be made on the 21st day of April, 1876. This notice was published once every week, thirteen times, the last publication being on April 21st. Upon this notice questions arise which will be presently referred to. The sale was made at the day appointed, and the land was bid off for the debt and interest by Ira C. Moore, who after the year for redemption expired conveyed to Mrs. Toles for the amount of his bid and interest and a further sum due him on a debt due from her husband. Mrs. Toles mortgaged the land to her son Wallace for $1,500. After the date of complainant’s mortgages, Jehiel Toles conveyed the equity of redemption to his wife. Although she disputes the acceptance of this conveyance, yet we think she knew of it, and is to be regarded as in fact such grantee. The complainant seeks to subject the claims of Mrs. Toles and Wallace Toles to his equities, on the ground that the alleged purchase was a mere redemption, which left his mortgages first mortgages. He also insists that the foreclosure was irregular and did not bar his rights. There is no reason to regard Wallace Toles as ignorant of any thing which might have affected his mother, and therefore the chief inquiry relates to her position. There is some criticism made of alleged alterations in the dates in the foreclosure documents. This refers especially to the date of the last publication, the affidavit of which is averred to have been changed from the 20th to the 21st of April. Inasmuch as the paper was a weekly paper, and the day of the week was therefore uniform, we have no doubt the 21st was the true date. It is,- however, of no importance, because the notice had already been published twelve times, and if the interval between the first, publication and sale was long enough, the last publication was superfluous. That it was both correctly published and long enough, we have no doubt. The period was fully twelve weeks excluding the day of the first publication and including the day of sale. The general rule in regard to notices which has always prevailed in this State includes the day of performance and excludes the day from which notice begins to run. This is the only rule which would nqt in such a case as this make the sale more than twelve weeks after the first publication, and no more than twelve weeks can be required. The sale was regular. There is no testimony tending to prove collusion or. fraud; and we do not think there is any foundation for supposing that ¡Mrs. Toles resorted to any improper contrivance to conceal a redemption under the pretense -of a purchase. The testimony is positive that the purchase was made after the title of Mr. Moore had become absolute. Mrs. Toles had as good a right to buy it as any ■ one else bad, ■ and was .under no obligation to pay out. money for the benefit of complainant. She was not his debtor. Her husband was such a debtor, but she could not become .so either by joining in the mortgages to release her dower, or by the invalid act of joining in tbe bond. She had no different relations towards complainant from those of any one else in a similar position.' Her original rights having been cut off by the foreclose lire,, she is now only a purchaser from Moore, and she has all the rights which Moore himself would .have had. in case he'had kept the-land. Complainant could have redeemed at any time before the title of Moore became absolute. Having failed to exercise that right, we think his rights have become barred, and that his bill was properly dismissed. The-decree must be affirmed with costs. The other Justices concurred.

Coolex, J. The plaintiff counts upon a breach in the covenant of seizin contained in a deed of conveyance of a certain forty-acre lot of land, constituting one-quarter of a certain quarter section, which defendant executed to him many years since. The consideration mentioned in the deed was $350. It appears that plaintiff entered into possession of the whole quarter section, claiming the whole as owner, and made valuable improvements thereon; that one John McFee then brought ejectment against him for the whole, claiming title; that plaintiff having filed his claim in that suit for the value of his improvements, the value was assessed at $4,500, and the value of the land without the improvements at $800; that thereupon McFee elected to abandon the land to plaintiff on payment of the value exclusive of the improvements, and that plaintiff paid the sum of $800 so assessed. It is not disputed that plaintiff, under these circumstances, is entitled to recover, but the proper extent of his recovery is in dispute. Plaintiff claims that he should recover the whole purchase price — $850—and interest from the date of his purchase; while defendant insists that he is entitled to recover only what it has cost him to perfect the title, which in this ease must be taken to be $200, there being no evidence that the forty acres purchased of defendant was of greater value than either of the other forties on the quarter section. This last was the view taken by the circuit court. The general rule is not disputed that a vendee whose title proves defective, and who buys in an outstanding title or right to perfect it, is limited in his recovery to what he has paid to make good his title; but it is claimed that the facts in this case make out a case of eviction and of subsequent purchase; in which case the sum paid on the last purchase is not suffered to limit the recovery on the covenants in the first deed. Martin v. Atkinson, 7 Geo., 228. But this is not such a case. Plaintiff never lost his land. There was a technical eviction, such as would permit him to sue on his covenant, but what he paid was paid to perfect his title, and not by way of a- new purchase. He never surrendered possession, and was never in position where he had lost his rights in or to the land. McFee could not evict him without making-payment for his improvements; and that he elected not to make. The ease does not differ from one where the outstanding title is bought in before any trial of its validity, except that, in that case, the party buying it in would take upon himself the burden of proving that it was such a title as constituted a breach of covenant. In the court below defendant consented to a judgment for $228. There is nothing in the record to show that this was insufficient. The judgment must be affirmed with costs. The other Justices concurred.

Campbell, C. J. Harvey proved a claim against the estate of John T. McKeown for heating apparatus contracted for during his life, but mostly set up after his death. The case was appealed to the circuit court for Wayne county, where it was referred, and the claim allowed. There was no written contract, but a paper was proven which was shown to be a copy of specifications accepted by the deceased. The questions raised are chiefly questions of evidence. A preliminary question, however, is raised concerning the power of commissioners to pass on such a claim because the work was done after the testator’s death. The claim for extra work ordered by the executor was rejected. As to the rest, there can be no doubt that the estate of a deceased person is bound by his contracts in all respects, if they are carried out. If this work had not been done according to contract it would have raised a very different question whether an implied contract could be raised on a quantum meruit, which could bind the estate. As the testimony is clear and unequivocal that there was an absolute performance, no such difficulty arises. When plaintiff below was called to the stand he was questioned concerning a proposition made to one E. T. Brookes, architect, to do work on a house belonging to McKeown, and this was objected to as equally within the decedent’s knowledge. This objection was somewhat premature, as nothing in plaintiff’s testimony showed that McKeown had any knowledge on the subject, and it was certainly possible for him to have entrusted his architect with plenary authority. Harvey was not permitted to testify to any dealings with deceased. Brookes, the architect, who was under no disability, made out the case which connected McKeown with the acceptance of the proposals. Secondary evidence was given by copy of the proposals, the proof being that the original could not be found. It seems to us the evidence of loss was sufficient to raise a reasonable probability that it could not be found. As this question came up on a case which had already been tried before the commissioners, and the original was not produced there, and is sworn to have been left in the custody of Brookes, his failure to find it woqld not require a- search elsewhere. We do not think it can be regarded as an error to allow a witness to answer a question concerning the conformity of work to specifications, which called for an affirmative- or negative answer. It could not very easily have been put in any other way which would not have been open to the same criticism. It was not strictly a leading question, because that points to the particular answer desired, and not to an affirmative, or negative. Some discretion must be used on this subject, and over-nicety is not conducive to convenience or justice. In the absence of the will we do not know what authority it gave the executor to contract or otherwise bind the estate. Assuming, therefore, that he had no such power, we cannot reverse this judgment for the; admission of proof of his approval of the work, when, under the undisputed testimony the work was properly done, and the referee would have violated his duty if he had disregarded that testimony. If it were possible without this proof concerning the executor to find against the claim, then there might be error; but here there; was no jury, and the referee acting in the double capacity of judge of law and facts, and showing a case that could only be decided in one way unless he discredited the witnesses, we must accept his conclusions and assume, he reached them properly. It was not improper to show the oversight by the executor as a part of the res gesta. The other testimony if not strictly proper was not 'material, and could not, we think, have varied the-result. The judgment must be affirmed, with costs. The other Justices concurred.

Cooley, J. The bill in this case was filed to enjoin the sale of real estate in satisfaction of a paving assessment. The amount for which the city claims a right to sell is less than one hundred dollars, and it is made a ground of defense that the amount • involved is not sufficient to give the court jurisdiction. But the jurisdiction, where the title to or enjoyment of one’s real estate is in question does not depend on the- amount of the claim asserted against it, but upon the value of the land itself. This we have often decided in unreported cases, and the principle of the case of White v. Forbes, Walk. Ch., 112, is strictly applicable here. The assessment made upon the lands of complainants amounted to about the sum of three thousand five hundred dollars. Complainants paid this amount to the city marshal, and they also paid to him a portion of his collecting fees. The remainder they refused to pay, claiming that they had had an agreement with him that he should receive what they had paid him in full satisfaction. An understanding of some sort on the subject between him and the complainants was admitted by the marshal, but he denied the agreement which they set up, and he refused to receive what was paid to him in full satisfaction. He did not, however, decline to take it, but claiming a right in the absence of specific instructions regarding the application of the moneys, to apply them as he thought proper, he applied them in satisfaction of the assessments on all the parcels of land assessed except one and proceeded to advertise that for the satisfaction of what he still claimed was unpaid. It was conceded on the argument that under the law in force when the assessment was levied, lands could not be sold for the marshal’s fees, but only for the assessment and interest thereon, and that the marshal’s sole remedy was to collect his fees while he held the warrant. It is said, however, that the law in that regard was amended before the sale was advertised, so as to permit the sale to be made for the amount of the tax and interest not only, but for the marshal’s fees in addition; and it is claimed that the sale must be made under the amended law. It is not claimed, however, that the amended law in terms applies to assessments previously made; and we held in Clark v. Hall, 19 Mich., 356, that presumptively tax laws are intended to have a prospective operation only, and' the remedies they provide for collection will not be applied to taxes previously laid unless an intent that they shall be is clearly manifested. We have not looked into the statutes having a bearing upon, the present case, as it is conceded that the amendatory statute manifests no such plain intent. Complainants’ lands, then, could not be sold for the fees of collection, because fees of collection were only collectible by the officer in collecting tbe assessment without sale. The question now is, whether any thing appears to remain unpaid except the marshal’s fees. On this question there is no room for controversy. Complainants made payments from time to time without any specific application by either party, but the final payment which was made after the dispute arose between them and the officer, was expressly made to satisfy what they admitted was due; that is to say, to satisfy the assessment and that portion of the officer’s fees which they admitted to be payable under the understanding. It was entirely competent for the officer to refuse to receive the payment on these terms, but it was not competent for him to make any different application of the moneys if he retained them. This consideration renders unimportant the question which was right on the facts, the complainants or the officer, regarding the understanding as to the payment of fees. The officer has received payment of the assessment, and there can now be no sale for fees merely. Still less can there be a sale of particular lots singled out by the officer and returned for the purpose as delinquent, when the assessment on those is as much paid as it is on any of the others. The decree must be affirmed with costs. The other Justices concurred.

Marston, J. There was evidence given in this case on the part of the plaintiff below that he sold goods to the wife of plaintiff in error upon one year’s time under an express contract; that the goods were delivered; that an account therefor was rendered to Mr. Miller and by him retained without objection. There also was evidence tending to show that at the time an action was brought to recover for a part of the goods so sold and delivered, the account sued and recovered upon in this case was not due. With the weight of this evidence we are in no way concerned. The instructions given to the jury, both as to the authority of the wife to bind her husband and as to the splitting up of one cause of action were clear and explicit, and gave plaintiff in error no just cause of complaint. We discover no error in this record. The judgment must be affirmed with costs. The other Justices concurred.

Graves, J. Plaintiffs in error made claim against defendant in error for professional services rendered as they alleged at his express request and for his benefit in connection with bankruptcy proceedings prosecuted against the firm of Young & Dean, defendant in error being the father of the latter member of that firm and having a direct pecuniary interest in the proceedings. The claim being put in suit before a justice, the plaintiffs in error recovered $150 and the defendant in error appealed and in the circuit court the jury found for the defendant. The case comes up on a bill of exceptions, and the only charges of error insisted on relate to rulings in respect to the admission of evidence. The. mode of submission to the jury is not complained of. The liability was contested upon the ground that defendant in error never employed the plaintiffs, and the chief evidence on which they relied to prove the fact of employment consisted of correspondence. After the •institution of the bankruptcy proceedings against Young & Dean, Mr. Young of that firm engaged the plaintiffs to help him, and their position as counsel for Young, or Young & Dean, and their course taken in connection with special efforts to bring about a compromise between the firm creditors and the alleged bankrupts seem to have led to the transactions which have given rise to the present controversy. One of the matters agitated was that defendant had received certain conveyances from his son which the creditors of Young & Dean would assail through the assignee in bankruptcy unless a compromise should be effected. Mr. Dean resided at Parma and the plaintiffs at Detroit, and Mr. McGee of Jackson was a local adviser of the former. Mr. Dowling testified that defendant in error in person or through McGee, his attorney, authorized plaintiffs to see what could be done in effecting a compromise with three or four of the creditors who were unwilling to take fifty per cent., and to notify him by letter, and that after consulting Mr. Dickinson, who had the claims, the plaintiffs wrote him the first letter. It is objected that the court erred in' allowing defendant to explain his grounds for replying to that letter. The record, in my opinion, fails to present the point attempted to be brought into question, but the other members of the court are satisfied that the objection is fairly saved. That being the case there can be no doubt that error was committed. The letter to plaintiffs in error was naturally received as an answer to their letter, and they were entitled to read it in connection therewith, and according to the fair import of its terms taken in such connection, and it was not competent to show that Mr. Dean was influenced to write it by some undisclosed purpose, or that any expressions in it were used in a foreign or hidden sense, or that it was a communication meant to convey any other sense than that to be naturally ascribed to it by the plaintiffs in error under the circumstances. For the error in admitting this evidence the judgment must be reversed with costs and a new trial ordered. Some other mátters are agitated in the brief of plaintiffs in error which are not very important and will not be likely to come up again. The other Justices concurred.

Graves, J. Phillips brought ejectment for the undivided three-eighths of the north half of the west half of the northwest quarter of section sixteen, in the township of Sturgis, in the county of St. Joseph, and was allowed to recover, and the defendants below brought error. The material facts are not disputed. In 1850 Archibald Brown died seized of the whole forty acres and intestate. He left a widow, Jane Brown, who is one of the parties, and eight heirs at law, namely, Harriet Chase, Thomas S. Brown, Emeline A. Brown, Sarah E. Brown, Caroline Wilson, Abigail Davis, Jemima J. Munger, and Mary Phillips, wife of defendant in error. Of these heirs Thomas S. Brown, Sarah E. Brown, Emeline A. Brown and Caroline Wilson are parties. The forty acres therefore subject to the widow’s dower descended to these eight heirs, each one being vested with a distinct undivided one-eighth part. December 14th, 1867, Harriet Chase conveyed her share to Thomas S. Brown and he thus became owner of two shares. February 17, 1868, the widow, Thomas S. Brown, Sarah E. Brown and Caroline Wilson quit-claimed their interests to Wier L. Drake. He thereby acquired the widow’s interest in the forty acres, and the five shares or undivided eighth parts represented by the heirs making the grant. Three shares or undivided eighth parts still remained in the other heirs, Abigail Davis, Jemima J.. Munger and Mary Phillips, wife of defendant in error. To secure the payment of the purchase price of the-widow’s interest and the shares granted to him by this, conveyance, Drake gave his mortgage for $950. It will, be noticed that he acquired nothing more than the five shares and the interest of the widow and held nothing more which he could encumber. The mortgage, however, was made in terms upon the entire estate in the whole forty acres, and was drawn as running not only to Drake’s, grantors, but to Jemima J. Munger likewise. The case explains that she was put in as mortgagee without her knowledge or consent and in the expectation at the time that she would unite in the deed made by plaintiffs in error. She never acceded to the contract. It is probable that the wording of the mortgage as a pledge of the entire estate in the whole forty acres may also be accounted for by supposing the parties-were contemplating the transfer of the other shares, but this is not important. January 2d, 1869, Abigail Davis, Jemima J. Munger and Mrs. Phillips quit-claimed their shares to Drake. He then stood as owner of the equity of redemption of the undivided parts represented by the widow’s interest and by the five shares conveyed to him February 17, 1868, and owner of the three shares last conveyed. In this state of things he became indebted to defendant in error for $400. The debt was secured by note signed by himself and one John Morrison, and by his mortgage on the whole forty acres in question and also on the adjoining south forty acres. This mortgage was dated January 13, 1869, and hence some days later than the deed. The latter was in fact given at the same time and the transactions were connected. It is well to observe in passing that Drake was at this time holder of the entire legal title and in a situation to mortgage the whole forty acres. The previous mortgage, which only attached to particular.undivided shares, was no hindrance. April 13, 1870, Drake and wife conveyed the equity of redemption in the entire forty acres in question to Laura A. Perry, and she held it until January 16, 1871, when she quit-claimed to Mrs. Drake. In the meantime, and on December 20th, 1870, the sheriff in executing foreclosure proceedings under the statute on the first mortgage, being that given for $950 to plaintiffs in error, sold to the latter the entire forty acres. The sale did not become absolute until December, 1871. February 14, 1872, defendant in error filed a bill to foreclose his mortgage for $400. He joined as defendants Drake and wife and John Morrison. Morrison was personally served, but Drake and wife were proceeded against as non-residents. The bill was taken as confessed, and $590.89 reported due. The bill contained the same description as the mortgage and made no allusion to partial or undivided interests, and the decree followed the bill. This is not important. No question of jurisdiction arises in regard to the right to maintain the bill. No one claims there was no subject matter left, even if some portion of the interests mortgaged had been taken away by regular foreclosure of the prior mortgage. The commissioner advertised a sale pursuant to the decree, and failed to suggest that only an undivided three-eighths of the forty acres would be offered. If this was improper, as I think, it was still an irregularity at most to be complained of in the same case, and not a defect of jurisdiction which may be objected to in a collateral proceeding. The sale was confined to three undivided eighth parts of the forty acres and the whole of the forty acres lying south, and defendant in error became purchaser of both. The consideration for the former was $25, and that for the latter $65. July 18, 1873, the commissioner made conveyance and reported the sale and a deficiency of $546.79, and the proceedings were confirmed. When the proceedings were offered in evidence, their introduction was objected to on several grounds. Some of them have been sufficiently noticed already. The chief objection'is aimed at the proof of publication of the order for the absent defendants to appear. The proof made was by affidavit in these terms, after giving the title of the cause: “ St. Joseph county — ss: Lee Gray Hull, a printer in the office of the Constantine Weekly Mercury, a public newspaper printed, published and circulated in the county of St. Joseph and State of Michigan, being duly sworn says that the annexed notice, chancery order, has been published in said newspaper at least once in each week for six successive weeks; that the first publication of such notice in said newspaper was on the 12th day of December, A. D. 1872, and the last publication of the same was on the 30th day of January, A. D. 1873.” Then followed the affiant’s signature and a jurat in due form. The argument against this affidavit assumes that the statute has exclusively prescribed what shall be proof in such cases, and that this proceeding is covered by Comp. L., § 5924. It is then said that the affidavit does not appear to be made as required by that section, namely, “ by the printer of the paper or by his foreman or principal clerk,” and further, that it is not stated that the notice was “taken from the paper in which it was published.” It is not admitted that the statute asumes to fix the exclusive mode of proof; but apart from this it is enough to say that the section cited has no application,. and that if any statute governs; it must be § 5927, and which the-affidavit substantially follows. The next position is that when Drake became grantee of the three-eighths quit-claimed by Abigail Davis, Jemima J. Munger and Mrs. Phillips, in January, 1869, the grant inured to the benefit of plaintiffs in error as prior mortgagees of the entire estate in the whole forty acres. That mortgage was given as a simple security without covenants of any kind, and its purpose was to secure the payment of the purchase price of the interests granted. It was, a purchase money mortgage, and nothing more. No covenant could be implied. Comp. L., § 4207. There is hence no basis on which the plaintiffs in error in their character as mortgagees can claim any benefit from the subsequent grant to their mortgagor on the principle of estoppel, and no other foundation is discovered. There is a further difficulty. The case shows that both mortgages were in substance and effect for purchase money. The grants to Drake and the mortgages given were not so many separate transactions. On each occasion the mortgage was given simultaneously with the grant, and Drake’s seizin was only momentary. He acquired nothing more than the interests his grantors possessed, and his mortgages attached to nothing which he did not then own. These views find support in the following authorities: 2 Bl. Com., 131 et seq.; 4 Kent’s Com., 38 et seq.; id., 173, 174; Tyler on Inf. and Cov., 526 et seq.; Mayburry v. Brien, 15 Pet., 21; Kittle v. Van Dyck, 1 Sandf. Ch., 76; Sage v. Cartwright, 5 Seld., 49; Sparrow v. Kingman, 1 Comst., 242; Durando v. Durando, 23 N. Y., 331; Burns v. Thayer, 101 Mass., 426; Perkins v. Davis, 120 Mass., 408; Pomeroy v. Latting, 15 Gray, 435; Brimmer v. Proprietors etc., 5 Pick., 131; Martin v. Martin, 1 Comst., 473; Smith v. Townsend, 25 N. Y., 479; Purdy v. Huntington, 42 N. Y., 335; Jackson v. Littell, 56 N. Y., 108; Shirras v. Caig, 7 Cranch., 34; United States v. New Orleans R. R., 12 Wall., 362; Hauft v. Duncan, 40 Iowa, 254. The mortgage to plaintiffs in error never attached to anything beyond the estate Drake possessed when he gave it, and as he then had nothing except what they granted to him, namely, their respective undivided interests, it reached no farther than those interests. The seizin being instantaneous there was no chance for any distinct right to intervene and expand the lien. See authorities last cited. It would be strange if the general terms of the first mortgage, and the subsequent grant by the three heirs could have the effect to convert such first mortgage given only to secure plaintiffs in error for their shares, and by one having no interest beyond such shares, into a lien on the other shares, and not only so, but a lien having preference over a purchase money mortgage made on the sale of such other shares. Yet this is the very ground taken. The law will not tolerate such injustice. Beall v. White, 94 U. S., 382. Some other points are mooted, but they do not seem to be even plausible. They will not be discussed. No error is found in the record, and the judgment should be affirmed with costs. The other Justices concurred.

Cooley, J. These are somewhat remarkable cases. The complainant in the original bill is administrator of Charles R. Mitchell, a former resident in Kent county in this State, who died in February, 1873, intestate. By the bill which makes Mary C. [Mitchell and Samuel C. Chesney defendants, he avers that his intestate died seized of a certain forty acres of land in Kent county of the value of sixteen hundred dollars, and covered with pine timber; that the intestate owed several hundred dollars of debts and had no personal or other property from which they might be paid except the land aforesaid; that Peter B. Mitchell, the father of said Charles, was left his sole heir at law; that on March 10, 1873, said Peter, as heir, conveyed said lands to John J. and Cornie J. Mitchell, and said Cornie in August following conveyed to said John; that in September, 1873, said John died leaving a last will by which he devised said lands to Mary C. Mitchell as complainant is informed; that said Mary, in October, 1873, conveyed the same to Samuel C. Chesney; that the deed from said Peter to said John and Cornie was obtained by fraud, the particulars of which are set forth; that Chesney had full knowledge of the fraud when conveyance was made to him, and that the several conveyances ought to be decreed to be void for the fraud, “and that said land ought to be decreed to be the property of the estate of said Charles B. Mitchell deceased, free and clear of any and all cloud or transfer or burden laid thereon by either of said conveyances.” The prayer is that the said conveyances, be decreed void accordingly. "What possible interest the complainant as admihÍKtrator could have in the question whether the deeds were void or not, is not obvious, nor has there been any attempt to explain. Concede the facts recited in the; bill, and the question what conveyance, if any, has been made by the heir-at-law, and upon what consideration he acted, and whether he was defrauded or not, are; subjects with which the administrator has not the slightest occasion to concern himself. It is enough for him. to know that the land belonged to the intestate at th& time of his decease; that fact is sufficient to enable him to-charge it with the debts of the intestate, and his dealings with the property can in no manner be affected by the fact that the heir-at-law has made either a valid or a void conveyance of it. To ask that it be decreed to be the property of the estate as against a conveyance which, upon its very face, in stating the heirship of the grantor,, assumes the fact, is to invoke the jurisdiction of equity in a proceeding which would be both idle and puerile. The bill ought to have been demurred to and dismissed. The bill was not demurred to, but was answered fully by the defendants Chesney and Mary C. Mitchell, who also filed a cross-bill, setting up the same facts which were alleged in their answer. The cross-bill is long, and we shall not attempt to give the facts in detail, as a summary is sufficient for our purposes. The deed from Peter B. Mitchell to John and Cornie is set up, and all fraud in procuring it is specifically denied. The appointment of Hill as administrator of the estate of Charles B. Mitchell is alleged to have been procured by Peter B. Mitchell for his own purposes, and not in the interest of the estate. It is charged that there was sufficient personal property belonging to the estate to meet all demands upon it, and that Hill has purposely omitted some portion of it from his inventory for the express purpose of showing a necessity for selling the land. It jS further charged that Peter B. Mitchell with the connivance of Hill, has procured the allowance of a fictitious claim in his own favor to the amount of $1,121.11, and that this was done for the purpose of swelling the apparent indebtedness of the estate in order to make it necessary that said lands be sold to satisfy it. The bill then sets up certain proceedings by Hill to obtain possession of the lands, which are averred to have been taken in the interest of Peter B. Mitchell, and to be fraudulent, and prays that the title of Chesney iñ the land may be decreed to be good and valid, and that Hill and Peter B. Mitchell be enjoined from attempting to sell or dispose of the lands and from in any manner interfering with the same. Answer was made to this bill by Hill and Peter B. Mitchell. The answer relies for defense upon the fraud in obtaining the deed of the lands from Peter B. Mitchell, and the necessity of selling the lands to satisfy the demands proved against the estate of Charles R. Mitchell and the costs of administration. An exhibition is made of the demands, and it appears that with exception of the claim allowed in favor of Peter B. Mitchell, the demands were insignificant. It is. thus shown that defendants in answer to. this cross-bill’rely upon two facts: first, that the land of which Charles B. Mitchell died seized descended to, and still belongs to Peter B. Mitchell; second, that it is necessary that the land now be sold to satisfy a demand in favor of Peter B. Mitchell! Thus both Hill and Peter B. Mitchell assume the position of insisting strenuously that Mitchell’s land shall be sold to satisfy a demand in favor of Mitchell himself! It is not necessary to go at length into the evidence taken upon the issue made by this answer. It is sufficient to say that there was unquestionably personal property sufficient to pay the costs of administration, and all demands against the estate, including the disputed demand in favor of Peter B. Mitchell. All pretense of a necessity for selling the lands to satisfy claims against the estate is therefore utterly baseless. But we also think the evidence in the case shows that the demand in favor of Peter B. Mitchell has been fully paid. It is shown that Cornie Mitchell had nine hundred and fifty dollars belonging to the estate which she loaned out and took note for; that Hill knew of this; that Peter B. Mitchell authorized him to pay the demand allowed in his favor over to Cornie, and that he did actually pay over $700 with full knowledge that she then had in her hands the $950. This was manifestly an excessive payment. He should have paid to her only the difference between the amount she then had in her hands, and the amount awarded to Peter B. Mitchell, and Cornie could have demanded no more. If Peter B. Mitchell had refused to recognize such an adjustment, it would then have been the duty of Hill to have proceedings taken to collect the amount if that should have been found practicable. As Cornie resided in Ohio it might not have been practicable for him to make collec ¿ion; but it is sufficient to say in this case that the facts shown make an application of the moneys in Cornie’s hands so far as was necessary to the satisfaction of Peter B. Mitchell’s 'claim, and that all pretense of a necessity for selling the lands to pay demands against the estate of Charles B. Mitchell is effectually disproved. The court below granted a perpetual injunction as prayed in the cross-bill. In so decreeing, it was in effect decided that the deed from Peter B. Mitchell to John and Cornie Mitchell was not obtained by fraud. We agree in this conclusion. We also agree that this whole litigation, so far as the administrator is concerned, was wholly unnecessary and useless, and that defendants in the original bill and complainants in the cross-bill should recover their costs, against Hill and Peter B. Mitchell, and that these costs should be a charge against Hill personally and not against the estate. Some question was made by the appellants on the argument whether it was sufficiently established that the will of John J. Mitchell under which Mary C. Mitchell claimed, was lawfully probated. It was first probated, in Ohio and afterwards in this State. The last probates is prima facie sufficient, at least, and that is sufficient for the purposes of this case. It is also objected that there is evidence in the case Chesney has reconveyed to1 Mary 0. Mitchell since this suit has been pending; but as this fact does not affect the issue, it does not concern the appellants. The decree is affirmed, with costs. The other Justices concurred.

Marston, J. The respondent was tried upon an information charging him with having feloniously, willfully and of his malice aforethought killed and murdered one George Fuller. The evidence was circumstantial. While it tended to show that the crime charged had been committed by the respondent, and while the jury might under proper instructions' have found the respondent guilty of murder in the first degree, yet we think the court erred in charging the jury that their “verdict should be either guilty of murder in the first degree, or not guilty.” There was no claim or pretense that the murder if committed was perpetrated by means of poison, or lying in wait. If there had, perhaps the charge given might have been proper. There were facts from which the jury might have found that it was a willful, deliberate and premeditated killing, but this was a question for them to determine, from all the evidence in the case. It may have been a sudden affray, or in self-defense that the fatal blow was struck, and although the court may have been of opinion that such was not the case, yet it still remained a question for the jury to determine under all the facts, and they certainly may have found that the crime committed was not in the same degree as the court assumed. It was claimed here that there was no evidence sufficient to justify the respondent’s being held to answer the offense charged, and that he should therefore be discharged. We are of a contrary opinion. It is the clear duty of the officers of the law to submit this case to a jury. Judgment reversed and new trial ordered. The other Justices concurred.

Marston, J. The finding of fact's by the court in this case is sufficient to sustain the conclusions of law and judgment rendered thereon. The claim made that under the finding of facts the cause of action was barred by the statute of limitations cannot be sustained. The court did find “that some time during the year 1873 the, defendant, with his family, moved to Joliet in the State of Illinois, and at that place resided up to the time of the commencement of this suit.” , The notes matured in 1871, and this action was- com menced in 1878. We consider it very clear that if defendant moved out of this State into another and resided there from 1873 up to the time of the commencement of this suit, he necessarily must have been absent from this State during the time he resided in Illinois, and consequently the case comes within the exception. It follows that the judgment must be affirmed with costs. The other Justices concurred.

Marston, J. It would be somewhat difficult to properly characterize the remarkable course adopted in this case to induce the respondent to make a confession, and it would be still more difficult to say that it could, under the circumstances, be used as evidence against the respondent when on trial. The course adopted by the detective, Moore, at the jail, and what took place the next day at the time the statement made was reduced to writing, was so contrary to all modern principles of fairness and justice that it could not and cannot be tolerated. We here give the detective’s own version of what took place at the jail the evening before the confession was made. “When I asked him he denied setting fire to the mill. I told him I knew he did know something about it. I spoke mild, as I talk to you now. He again denied it as usual. I told him the best thing he could do, if he knew any thing about it, was to own it up. I don’t know what he said next. After a while I said I understand Jackson is arrested and has squealed on Flagg in burning the mill. He .then said: There is more into it than me. I wanted him to tell who and he would not do it. I wanted him to tell who the other parties were. Told him he had better make a statement and tell who the parties were. I repeated the words perhaps a dozen times that ‘you had better make a statement.’ I told him he would have to see the prosecuting attorney about turning State’s evidence. I said it would be better for him, because I wanted to get it out of him. I get no pay for coming up here except my expenses. The party who gets me to go out has to pay the city for my time and expenses and salary. I remained in jail but a short time. Went away and came back again about eight o’clock. I asked him who the parties were who were with him. I thought I could knock it out of him. It was because I saw he was a weak one, and I thought I could knock it out of him. It seems I did get it out of him. He asked me for a drink of whisky and I gave him a drink. We both took a drink and I left the bottle empty with him. It was a half-pint bottle and was about half full. It was before he told me he would go and make a statement that I gave him the whisky. In the morning I told Fay I had come np to take him before a justice.” Here follows what took place at the time the first confession was made the next day, and the circumstances under which it was made: “The defendant came to the office with Mr. Moore, a detective. He was apparently in his custody and under arrest. I understood that he was arrested the day before in Manistee. This was between ten and twelve o’clock in the forenoon. Defendant had been kept in jail over night. I understood that he (Flagg) wanted to be brought to the office. He had handcuffs on when he came in and was taken away in the same manner. Mr. Connover was present most of the time. Mr. D. B. Butler and Mr. Moore were present all the time. The most of the conversation was minuted down by Mr. Butler. The talk was mostly put by me in the form of interrogatories, in the same manner you would interrogate a witness. Mr. Butler wrote a memorandum of the conversation, which was signed by Mr. Flagg. The door to the office was locked a portion of the time he was there. I think Mr. Moore was employed by the owners of the mül. He was in my office one hour and a half, or thereabouts.” When a party under arrest is told by the officer that the best thing he can do is to own up — that he had better make a statement; — when it is supposed that a statement can be forced — “knocked”—out of him because “he was a weak one;” when intoxicating liquors are furnished him to aid in the forcing process; and when on the following morning he is taken in irons to the office of an attorney, and there, in the presence of those hostile to him, with bolted doors, is interrogated, his answers reduced to writing and sworn to, it is idle to say that such a confession was free and voluntarily made, even although the witnesses may testify that .no inducements were made or held out to him. See People v. Thomas, 9 Mich., 318. It is probable that some of these parties were acting in good faith without a full knowledge of what had taken place previously, but this would not change the legal or moral aspects of the question here raised. Legally and morally a more serious offense was com mitted in the efforts to extort a confession than the respondent was guilty of, even if his confession was true, as it was a perversion of the process of the law, — “a poisoning of the fountains of justice.” Striking out the confessions, which clearly could not be used against the respondent, the court should have instructed the jury to acquit him. There was nothing left. The judgment should be reversed and the prisoner discharged. The other Justices concurred.

Campbell, C. J. Bailey and Hardy replevied a buggy from Webster who held it under an execution levy against one William W. Hooper. Bailey and Hardy were in business at Big Eapids, and had, or claimed to have had, an account against Hooper amounting to $72.77. According to Bailey’s testimony, he purchased the buggy from Hooper under these circumstances: Hooper drove into Big Eapids October 30,1877, between one and two o’clock in the afternoon, in this buggy drawn by two horses, and stopped at a water-trough. Bailey went over to where he was, and, as he says, bargained with him- for the buggy for $75, for which Bailey was to give credit on the books of the concern. He says: “ Hooper and I agreed that we should have the buggy. And after I bought the buggy, he says, ‘You will have to let me have it to go home with,’ and I told Hooper that he might have it to go home with, and return it to us the next day. I went across the street to our market to give Hooper credit on our books.” He then stated that he gave his clerk directions to give Hooper credit, which was done by the following entry on the day-book: “W. W. Hooper, by one buggy, $75.00.” No bill or itemized account had been made up, no receipt was given, and Hooper neither saw nor knew of the entry. Bailey when this transaction occurred knew the sheriff had the execution which he levied. The horses were not unhitched from the buggy, and — which is not perhaps very important in view of all the other facts, — it is not certain whether Hooper was out of the buggy when the bargain was made. No other acts were done about it. Hooper went into a law-office, and while there the sheriff found the horses and buggy fastened at the trough and seized •them. Assuming, as we must, that the jury believed this story, there was neither acceptance and receipt of the Luggy, nor any earnest given, nor any note or memorandum in writing signed by either party, as required by Comp. L., § 4699. The buggy was never in possession, actual or constructive, of Mr. Bailey, and never for a moment out of the actual possession of Hooper. Hooper received no money, or receipt, and was no party to the entry on the books. The whole transaction — giving full credit to the testimony — was executory, and no title passed. Had it been executed so far as delivery of the buggy was concerned, there was ho statement or ascertainment of the account, no acceptance or delivery of the buggy in payment of any present debt, no present debt large enough to pay for it, and no change of possession. It was nothing more or less than a sale on credit to be settled on the balancing of accounts, and the purchaser knew of the execution. It was therefore presumably fraudulent under § 4703 of the Compiled Laws, and the presumption of fraud not overthrown by any proof of a payment in good faith, — which is essential to complete a bona, fide purchase. We think the plaintiffs’ own testimony proved conclusively that no title ever passed to the buggy, and that •even the executory contract was fraudulent in law if not in fact. The court therefore erred in not directing a verdict for the defendant. We think there are other grounds of error, but as these must necessarily end the controversy, we shall not ■consider them further. Judgment must be reversed with costs, and a new.' trial granted. The other Justices concurred.

Per Curiam. There is no reason why the city should not be the moving party in such proceedings provided it moves on the application of parties in interest. There is nothing in the present application to show that the parties interested appeared before or applied to the common council, and that body cannot start such proceedings except on application by responsible and interested parties.

Campbell, C. J. Butters sued for trespass committed by the entry and holding at two separate periods by Tracy of a lumbering shanty. The chief defense is that there was no such title shown in Butters as to authorize the recovery. The objections, as it seems to us, were rather of fact than of law. There was testimony tending to show that Tracy & Butters had occupied the shanty as their own, and that on a settlement and closing of their partnership affairs, Tracy sold out his interest in it. This being so, and Butters swearing to a prima facie case, the question of title to the land became immaterial, and we cannot find as matter of law there was no possessory right shown which Tracy infringed as between these parties; whatever may have been the actual facts there was enough to go to the jury. The charges of the court on the trial were all strong enough in favor of defendant below if there was any evidence at all on the main issue. The charge principally complained of, refusing to instruct the jury that there could be no damages for the continued possession, but only for the act of ouster, was correct. There is no foundation for such a doctrine as is claimed by plaintiff in error. The damages include properly all the1 injury caused in 1'aw by the retention of possession against right. And we think, inasmuch as the sole benefit of this possession was from its proximity to lumbering operations, the increase of expense necessarily caused to the plaintiff by the exclusion, came within the rule of Allison v. Chandler, 11 Mich., 542. The record does not show any attempt to get damages to the freehold. We ’think there was no error, and that judgment, should be affirmed with costs. The other Justices concurred.

Cooley, J. The plaintiff, as administrator upon the estate of William Burke, brings suit to recover the avails of certain promissory notes, and an additional sum of money which it is conceded were the property of Wil liam Burke in his lifetime, and had been delivered to defendant for him as the purchase ■ price of certain lands sold to one Smith. The notes were given by Smith, and were payable to the order of William Burke. Defendant was brother of William Burke, and they had a sister, Rebecca, who at the date of the land sale resided with William. The latter was then about eighty years of age. While defendant thus held the money and notes, William Burke executed and delivered to him the following paper: To Andrew L. Burke, Esq., of Berrien township, Berrien county, Michigan: Dear Brother : — Having unbounded confidence in your good faith and sound judgment as a man, and your kind affection as a brother, I herewith place in your hands, in cash, the sum of eight hundred dollars, and in the notes of James Smith for five thousand dollars, for the following purposes, to-wit: First. That you shall use and expend the same so far as may be necessary for the comfortable support of myself and of my sister, Rebecca, in a decent and respectable manner, in a style becoming our position in society, during the remainder of my natural life, we remaining and continuing on the premises leased to me by James Smith. Second. That after my decease you shall in like manner, with said funds and the proceeds of said Smith’s notes, if by that time paid, and if not paid, after the same shall be paid, support and provide for and maintain my said sister, Rebecca, for and during the term of her natural life, if she shall survive me, she remaining on and occupying said leased premises if she desires so to do. Thirdly. After my decease, and after the decease of my said sister Rebecca and after all just claims and demands against us or either of us, are paid and satisfied, then I direct you in case any of said money or moneys, the proceeds of the said James Smith’s notes, shall be on hand and unexpended, to apportion and divide the same, share and share alike, among all of my heirs then in being, just precisely in such proportion as the said heirs would be entitled to the same under the statutes of the State of Michigan, relating to the distribution of the estates of deceased persons. Dated Rokagon, November 18, 1868. Witness: Silas Ireland. his William X Burke. Acting under the authority of this writing, defendant collected the Smith notes. William Burke died in October, 1869, and plaintiff was appointed administrator of his estate in 1871. Bebecca Burke is still living, and no question is made in this case of failure of duty on the-part of defendant, if he is effectually charged with any duty by the writing above recited and by his receipt of moneys under its authority. It is claimed on the part of plaintiff that the writing is merely a -power of attorney to defendant to receive moneys for William Burke; that it created no trust, because apt words for that purpose were not employed, and the intent was that William Burke should retain for his own use not the income of the fund merely, but the fund itself, so far as he might see fit to appropriate it; that he therefore had full power and control over it, and when he died the authority he had conferred on his agent or attorney was ipso facto revoked and terminated.. And stress is laid in this connection upon the fact, as a significant one, that William Burke never endorsed the Smith notes, and consequently the legal title was never passed to the defendant. We are of opinion that the plaintiff is in error in the position that the writing created a mere agency. The-manifest purpose was to create a trust. The fund was entrusted to the “good faith and sonnd judgment” of Andrew L. Burke, and he was to “use and expend” the same, so far as might be necessary, for the comfortable support of William and Bebecca during their lives and the life of the survivor. He was also after the death of the survivor to apportion and divide the remainder.. These are apt words to create a trust: none more specific were necessary or were important. William Burke reserved no control to himself, and probably intended to-reserve none. His great age rendered it suitable and prudent for him to create this trust, and thereby relieve himself of the care of his property, and at the same time provide amply for the comfortable support of him self and his sister. Little light can be thrown upon this case by the opinions in Heermans v. Robertson, 64 N. Y., 332, to which we are referred. The supposed trust there was a trust in real estate, and the questions concerning it arose under the statute. We have no statute which will preclude the creation of such a trust as was here intended. The fact that the notes were not endorsed over to defendant was not important. They were placed in his hands, and the declaration of trust operated as an assignment. The maker of the notes could not have disputed his authority to enforce payment, and he did not assume-to do so. Nor was any formal acceptance of the trust essential. It was sufficiently accepted when defendant proceeded to execute it. Had Rebecca Burke deceased before the institution of this suit, and had all claims under the trust been satisfied, so that nothing but distribution among the next of kin remained to be made, the argument that the authority of the defendant had terminated would be more forcible-than it is now. But if terminated it must be because-the purpose of the trust was fulfilled; and it was not fulfilled so long as one of the cestuis que trust was entitled to a support from the fund. To that extent the trust remained in full force on the death of William Burke, and the appointment of an administrator could not disturb it. The judgment must be affirmed with costs. The other Justices concurred.

Marston, J. This action was commenced in justice’s court to recover the amount due upon a promissory note executed jointly by said defendant and one Henry G. Johnson. The statute of limitations was pleaded. On the trial the note, with the indorsement of payments made thereon, was introduced in evidence. The plaintiff was then called as a witness and testified that he had talked with defendant Johnson in regard to the payments made upon the note; that Johnson told him payments had been made as shown by said indorsements, and that the last payment was made by him, Johnson. The plaintiff then rested. The justice rendered a judgment against both defendants, which, upon certiorari to the circuit court, was reversed as to defendant Anderson, the other defendant not joining in the removal of said cause to the circuit. The evidence was clearly insufficient to warrant the rendition of a judgment against defendant Anderson. The statute is express and clear that in case of two or more joint contractors, no one of them shall lose the benefit of the statute, so as to be chargeable by reason of a payment made by the other, and also that indorsements of payments written by or on behalf of the party to whom payment is made shall not be deemed sufficient proof of payment to take the ease out of the statute. 2 Comp. L., §§ 7164-5. Unexplained indorsements of payments could not be received as evidence so. as to take the case out of the operation of the statute. Mich. Ins. Co. v. Brown, 11 Mich., 273. And the admissions of defendant Johnson could have no force or effect as against defendant Anderson. Thompson v. Richards, 14 Mich., 173. The circuit court was right in reversing the judgment as to defendant Anderson. It must therefore be affirmed, but as an important error has been amended or cured by a correction of the record in the court below since the. removal of this cause to this court, no costs will be1 awarded. The other Justices concurred.

Allen, J. The Court is presented with relatively significant questions pertaining to the law of product liability in Michigan. The circumstances foreshadowing this appeal began when plaintiffs, Messrs. Dooms and Sanders, suffered severe hand injuries on a rubber milling machine during the course of their employment at Detroit Rubber Company on 3 June 1969. Each plaintiff commenced separate suits against Stewart Bolling and Company (the manufacturer of the machine) and Michigan Mutual Liability Insurance Company (the insurer of plaintiffs’ employer). The cases were subsequently consolidated. Plaintiffs claimed Stewart Bolling was liable on the grounds that the machine did not have adequate safety devices incorporated into the design, and that the safety trip cable on the machine was inaccessible to the operator at critical points. Plaintiffs claimed liability against Michigan Mutual on the theory that it had breached its contract of workmen’s compensation insurance in failing to warn of the unsafe condition of the machine after having undertaken an inspection. Proof was presented on both sides, and the jury returned verdicts against Stewart Bolling — $300,000 for Dooms and $50,000 for Sanders. It rendered a verdict of no cause of action in favor of Michigan Mutual. Stewart Bolling moved for a new trial which was denied. Plaintiff Sanders filed motions for additur and new trial. The trial judge ordered defendant Stewart Bolling to stipulate to an additur of $150,000 as to Sanders or proceed to a new trial on the issue of damages. This appeal followed. I. Was it reversible error for the trial court in a product liability suit to instruct on strict liability? Stewart Bolling claims error occurred when the trial judge instructed the jury on three possible theories of recovery: negligence, implied warranty, and strict liability. It argues that our Supreme Court has never suggested that one could recover for personal injury by asserting a claim of strict liability against a manufacturer, and maintains that the instruction on strict liability amounted to directing verdicts for plaintiffs. Plaintiffs refer the Court to the substance of the instruction. They argue essentially that it isn’t prejudicial error for a trial judge to put a strict liability label on an otherwise recognized cause of action. It is undisputed that in Michigan a plaintiff may proceed under at least two tortious theories of recovery in product liability: negligence and implied warranty. Spence v Three Rivers Builders & Masonry Supply, Inc, 353 Mich 120, 135; 90 NW2d 873 (1958), Manzoni v Detroit Coca-Cola Bottling Co, 363 Mich 235, 241; 109 NW2d 918 (1961), Kupkowski v Avis Ford, Inc, 395 Mich 155; 235 NW2d 324 (1975). However, the debate continues with respect to whether the product liability theory styled strict liability in tort exists in this state. In Baker v Rosemurgy, 4 Mich App 195, 200; 144 NW2d 660 (1966), the Court seems to have recognized the theory: "Plaintiff’s theory of strict liability in tort falls also. Even if the test set forth in 2 Restatement of the Law of Torts, 2d § 402a, for this special form of liability were applied to a rifle, plaintiff’s own conduct again defeats a cause of action.” Moreover, a Federal court and legal commentators refer to Michigan as a strict liability jurisdiction. On the other hand, a recent panel of this Court in Rutherford v Chrysler Motors Corp, 60 Mich App 392, 394 fn 1; 231 NW2d 413 (1975), noted that the doctrine of strict liability in tort is nonexistent in Michigan. In Cova v Harley Davidson Motor Co, 26 Mich App 602, 612; 182 NW2d 800 (1970), the Court appeared willing to assent to its de facto existence but disapproved of the label "strict liability”. Throughout the opinion in Williams v Detroit Edison Co, 63 Mich App 559; 234 NW2d 702 (1975), this Court used the terms implied warranty in law synonymously with strict liability in tort, noting that which of the two labels ought to be used need not be decided to resolve the case. Finally, we mention in passing that the Michigan Supreme Court has not directly endorsed any tortious theories of recovery in product liability beyond that of negligence and implied warranty. We believe that sound reasons militate against adding another theory to the law of product liability in this state. Therefore, we refuse to sanction an instruction on strict liability in tort in a product liability case. First and foremost, we believe such a theory is unnecessary. As will be shown, it appears inconceivable that a plaintiff might fail to recover under our tort warranty of fitness theory, yet recover under a strict liability in tort theory. Secondly, as emphasized in Cova, supra, and Chestnut v Ford Motor Co, 445 F2d 967 (CA 4, 1971), adding more labels most likely enhances the chance of causing confusion. It would seem that the law of product liability is plagued by semantical pitfalls, and the Court does not desire to contribute to this legal quagmire. The question remains whether the giving of an instruction on strict liability in the instant case requires that we reverse. We begin with the instruction involved: "We come now to the third theory upon which the plaintiffs bring this suit * * * [t]hat has to do with this matter of strict liability of a seller of a product for physical harm to the user or consumer. It’s the law that anyone who sells any product in a defective, unreasonably dangerous condition to the user, or consumer is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to the property: first, the seller is engaged in the business of selling such a product; and, secondly, that it’s specifically expected to, or does reach the user or consumer without substantial change of the condition it’s sold. The rules which I have just given you apply, although first, the seller has exercised all possible care in the preparation and sale of his product; and secondly, that the user or consumer has not bought the product from, or entered into any contractual relations with the seller. Now, in your consideration of the foregoing, you should apply the instructions heretofore given in connection with the burden of proof and proximate cause. In negligence cases, with regard to the claim of product defect, it is the law of our state that the plaintiff must show you that there was, in fact, a defect in the product at the time it left the possession and control of the defendant. Therefore, if plaintiff has not proven to your satisfaction that there was a defect in existence at the time it left the possession and control of the defendant, or that any such defect was not a proximate cause of the accident, you should find in favor of the defendant in connection with this theory of the plaintiff. If there has been a modification of the machine from the time it left the possession and control of the defendant Bolling, and that modification was the sole cause of the accident and injury in these cases, or in either case, you should return a verdict in favor of the defendant, accordingly.” (Emphasis added.) The first part of the instruction parallels the language in Restatement Torts 2d, § 402A. The remainder described those elements a plaintiff must prove to establish a prima facie case in product liability, irrespective of the theory of liability: "Common to most products liability cases, regardless of the theory of liability, is the nature of certain proofs required to support a finding of liability. In Piercefield v Remington Arms Co, Inc, 375 Mich 85, 98-99; 133 NW2d 129 (1965), this Court commented on the nature of these proofs. " 'As made clear above, a plaintiff relying upon the rule must prove a defect attributable to the manufacturer and causal connection between that defect and the injury or damage of which he complains. When able to do that, then and only then may he recover against the manufacturer of the defective product.’ "While the Court in Piercefield, supra, was concerned with a breach of warranty theory, the above elements of liability are equally applicable to a lawsuit sounding in negligence.” Caldwell v Fox, 394 Mich 401, 409-410; 231 NW2d 46 (1975).“ What distinction, other than defenses, exists between the theory of implied warranty in law, the theory of negligence and strict liability? The key appears to lie in the term defect. When proceeding under a theory of negligence, the element of defect is established by proofs that the manufacturer failed to do what a reasonably prudent person would do or did what a reasonably prudent person would not have done under the circumstances. Under implied warranty imposed by law a defect is established by proof that the product is not reasonably fit for the use intended, anticipated or reasonably foreseeable. See Michigan Standard Jury Instructions, 25.21 and 25.23. Under the strict liability in tort theory in Restatement Torts 2d, §402A, a product not only must be defective (presumably any defect), it must also be in an "unreasonably dangerous condition”. This Court opines that if the condition of a product is unreasonably dangerous as well as defective (strict liability theory) then the product would necessarily be unfit for the use anticipated or reasonably foreseeable (implied warranty in law theory). We cannot conceive that had the jury found the rubber milling machine to be in a defective and unreasonably dangerous condition, it could still find the machine reasonably fit for the use anticipated or reasonably foreseeable. Conversely, we cannot conceive that if the jury determined the machine was reasonably fit for the use anticipated or reasonably foreseeable (thus rejecting implied warranty) it could nevertheless find that the machine was defective and unreasonably dangerous (thus finding strict liability). As was stated by this author in Williams, supra: " * * * [T]he application of the doctrine of implied warranty may have the same or substantially the same results as applying the doctrine of strict tort liability. 54 ALR3d at 1083.” 63 Mich App at 567. Therefore, the Court finds that the instruction on strict liability in tort as well as implied warranty was, at most, redundant, and concludes that the instruction was not prejudicial to defendant. Any prejudice which might have occurred by reason of a lay jury interpreting strict liability as liability without fault — which is precisely what defendant contends did occur — was precluded by the trial court’s definition of strict liability in terms identical to the definition used in the Restatement and in prior decisions of this Court. Added support for our position stems from the language of our Supreme Court in Cook v Darling, 160 Mich 475, 481; 125 NW 411 (1910): "It seems to be a well-settled doctrine in this State that where property is bought for a particular purpose, and only because of its supposed fitness for that, and where articles are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life and the failure of consideration is so complete that, where there is not an express warranty, there is an implied warranty that the goods are fit for the purpose for which they were bought, and that articles of food are fit for consumption. In such cases the vendor is held to a strict accountability.” II. Is contributory negligence a defense to a theory of recovery based upon the tort warranty of ñtness? Over defendant Stewart Bolling’s objection, the trial judge instructed the jury that if it found Stewart Bolling "liable for a breach of implied warranty in regard to the rubber milling machine, then I further instruct you that any contributory negligence on the part of either plaintiff is not a defense”. On appeal, defendant takes the position that this is not the law in Michigan, Baker v Rosemurgy, 4 Mich App 195, 200; 144 NW2d 660 (1966), Casey v Gifford Wood Co, 61 Mich App 208, 218; 232 NW2d 360 (1975), and that the court erred reversibly when it gave such instruction in lieu of an instruction on plaintiffs’ misuse of the machine as requested by defendant. Defendant argues that the record supports negligence on plaintiffs’ part. Plaintiffs counter that no reversible error was committed because the defense of contributory negligence is inapplicable to an action grounded upon implied warranty, Kujawski v Cohen, 56 Mich App 533; 224 NW2d 908 (1974), and because the court instructed that plaintiffs had to establish that there was a reasonable use when a hazardous condition leading to injury arose. In Kujawski v Cohen, supra, 542, a panel of this Court ruled as follows: "Contributory negligence, as it is characteristically understood in the common law of negligence, is not a defense to a breach of warranty action. Something more than mere negligence must be shown to bar recovery, something approaching 'assumption of the risk’ or disregard of known danger. Barefield v La Salle Coca-Cola Bottling Co, 370 Mich 1, 5; 120 NW2d 786, 789 (1963); Baker v Rosemurgy, 4 Mich App 195, 200; 144 NW2d 660, 663 (1966).” The Kujawski rule makes sense when it is considered that a defendant’s negligence is not pertinent to an action based upon implied warranty. This does not meap that a defendant is precluded from offering evidence to establish misuse of a product: "[W]arrantors are not to be held as guarantors against injury to consumers resulting from the consumer’s misuse of the product.” Barefield v La Salle Coca-Cola Bottling Co, supra, at 5. However, the question of a plaintiff’s product misuse as it relates to implied warranty is better directed to the question of proximate cause rather than contributory negligence as that term is defined in an ordinary negligence case. See Annotation, Contributory Negligence or Assumption of Risk as Defense to Action for Personal Injury, Death, or Property Damage Resulting From Alleged Breach of Implied Warranty, 4 ALR3d 501. Also see Imperial Die Casting Co v Covil Insulation Co, 264 SC 604; 216 SE2d 532 (1975). If the proximate cause of a plaintiff’s injury is found to have stemmed from his own conduct, such as misuse of a product, and not from the product’s lack of fitness, he may not recover since the proofs have failed to establish a causal connection between the defect and injury. Casey v Gifford Wood Co, supra, at 218. Moreover, if the failure of a manufacturer to provide a product reasonably fit for the use intended or reasonably foreseen is found to be a proximate cause of the injury to plaintiff, the fact that plaintiff’s misuse concurred with the defect to cause the harm will not bar recovery under a theory of implied warranty unless it can be said that plaintiff voluntarily and unreasonably proceeded to encounter the known risk. Baker v Rosemurgy, supra, at 200. In the instant case, the record is devoid of evidence tending to show that it was the plaintiffs’ conduct rather than the defect which caused the harm. Further, the court instructed the jury that to recover under implied warranty plaintiffs had to prove, among other things, "that the rubber milling machine was not reasonably fit for the use or purposes anticipated or reasonably foreseeable by the defendant in one or more of the ways claimed by the plaintiffs”, and "that the failure to provide an adequate safety device was a proximate cause of the injury to the plaintiffs”. Moreover, it instructed that "if the failure to provide an adequate safety device was not a proximate cause of the injuries” verdict should be for defendant. We thus conclude that the lower court did not err in instructing the jury that contributory negli gence was not a defense to implied warranty, and that the gist of what defendant was trying to get across in its requested instruction on misuse, to the extent the evidence supported it, was adequately covered by the instructions given. III. Did the trial court abuse its discretion in granting a motion by one of the plaintiffs for an additur or, in the alternative, a new trial as to damages? GCR 1963, 527.1(4) permits the court to grant a new trial where the verdict is "clearly or grossly inadequate”. GCR 1963, 527.6 provides: "When a finding is made that the only error in the trial is the inadequacy or excessiveness of the verdict, the court may deny a motion for new trial on condition that within 10 days the non-moving party consents in writing to the entry of judgment of an amount found by the judge to be the lowest or highest amount respectively which the evidence will support.” GCR 1963, 527.1 authorizes the grant of a new trial "to all or any of the parties and on all or part of the issues”. In the instant case, the jury awarded plaintiff Dooms $300,000, and plaintiff Sanders $50,000. Counsel for Sanders moved for additur or new trial. The trial court ordered defendant Stewart Bolling to stipulate to an additur of $150,000, so that the total verdict in favor of Sanders would be $200,000, or, in the alternative, to submit to a new trial on damages only. Stewart Bolling refused to stipulate to. the additur and was granted leave to appeal on the propriety of the trial court action. Defendant suggests that additur is not allowed in Michigan since it constitutes an improper inva sion of the jury’s province. Goldsmith v Detroit, Jackson & Chicago R Co, 165 Mich 177; 130 NW 647 (1911), Lorf v City of Detroit, 145 Mich 265; 108 NW 661 (1906). However, these cases were handed down long before the adoption of GCR 1963, 527.6. Several recent decisions recognize the use of additur or remittitur to cure an inadequate or excessive verdict. Pippen v Denison Div of Abex Corp, 66 Mich App 664; 239 NW2d 704 (1976), Barger v Galazen, 61 Mich App 182; 232 NW2d 354 (1975), Soave Construction Co v Lind Asphalt Paving Co, 56 Mich App 202, 205; 223 NW2d 732 (1974), Dougherty v Rezolin, Inc, 48 Mich App 636; 210 NW2d 899 (1973), Nicholaides v Demetri, 38 Mich App 102; 195 NW2d 793 (1972). Moreover, the issue in this case is not whether additur is permissible. The trial court ordered a new trial on the question of damages unless the defendant agreed to the additur. Since defendant refused to stipulate to the additur, the question on appeal concerns the trial court’s action in granting a new trial on the grounds that the $50,000 damage award to plaintiff Sanders was clearly inadequate. Although the question of damages is one of fact for the jury , as noted earlier, under the court rules, a party may be granted a new trial on the basis that damages awarded were inadequate or excessive. The grant or denial of a new trial is within the discretion of the trial court.* More fundamentally, appellate courts will reverse a grant or denial of a new trial grounded upon inadequate damages only where the trial court has “palpably” abused its discretion. Brown v Arnold, 303 Mich 616, 627; 6 NW2d 914 (1942). Where, as here, the reason given for granting a new trial— clearly inadequate damages — is legally recognized, the question becomes whether by any reasonable interpretation of the record there is support for the decision. Benmark v Steffen, 9 Mich App 416, 422; 157 NW2d 468 (1968). See also Williams Panel Brick Mfg Co v Hudsin, 32 Mich App 175; 188 NW2d 235 (1971). The instant trial court listed the following as determinative in granting its order: "The case before the Court presents a truly unique situation in that it involves two cases consolidated for trial involving two men with serious and remarkably similar injuries. Notwithstanding the obvious similarities, there was a tremendous discrepancy in the jury’s verdict, i.e., Mack Dooms received $300,000.00 and Willie Sanders $50,000.00. In view thereof it appears to be incumbent upon this Court to examine into whether or not there existed sufficient differences in damages to justify this tremendous variation, and also if there were errors in the trial or circumstances which existed which unfairly prejudiced Willie Sanders. "Upon a review of the record in a comparison of the damages suffered by each plaintiff the following seems significant: "Each man suffered a crushing injury to one hand. "Each man is right-handed, but Mack Dooms suffered injury to his left hand and Willie Sanders to his right. "Each man’s injury resulted in partial amputation of the effected hand. "According to medical testimony each man has lost effective use of the hand involved. "Mack Dooms required more surgical procedures following the injury. "Each man has suffered a loss of earning capacity and loss of earnings. "Mack Dooms was able to return to his former employer, although at a lesser pay. "Willie Sanders was not able to return permanently to his former employer and was without employment for a much longer period of time than Mack Dooms. The employment which he finally obtained was at a substantially reduced wage. "In summary of the above, it becomes clear to this Court that there existed nothing in the record of these cases to justify the extremely large difference in the two verdicts.” The Court agrees with defendant Stewart Bolling that the record shows plaintiff Dooms’ injury to be relatively more severe than Sanders’ which resulted in a greater degree of suffering and called for more medical attention. Moreover, the lower court tended to over-emphasize the fact that Sanders was off work for a longer period. The record seems to indicate that the period of unemployment was due in part to the disposition as well as the capacity of Sanders. Conversely, there were, as the court below points out, striking similarities between the two injuries. Further, it was Sanders who lost effective use of the hand he used the most by nature. Yet, the damages awarded amounted to approximately 16% of what Dooms was awarded. We cannot say that the trial court abused its discretion in finding that a significantly larger sum was supported by the record, and that plaintiff was entitled to a new trial on the grounds that the damage award was clearly inadequate. Defendant questions the authority of the trial court to grant plaintiff Sanders a new trial limited to the issue of damages. It is true that, as a rule of thumb, appellate courts do not favor the practice of granting partial new trials in personal injury cases, despite authorization from GCR 1963, 527.1, owing to the fact that liability and damage issues are commonly interwoven. Kistler v Wagoner, 315 Mich 162; 23 NW2d 387 (1946), Bias v Ausbury, 369 Mich 378, 383; 120 NW2d 233 (1963). The only exception to this notion that the Supreme Court has thus far recognized is where "liability is clear”. Trapp v King, 374 Mich 608; 132 NW2d 640 (1965). See also Doutre v Niec, 2 Mich App 88, 90; 138 NW2d 501 (1965). An additional exception seems to have been posited in Mulcahy v Argo Steel Construction Co, 4 Mich App 116, 130; 144 NW2d 614 (1966). A departure from the notion against granting partial new trials is justified where the circumstances of the case establish that justice will be fully and better served. In this light, due consideration must be given to the decision of the trial court who presided over the case. The focal point of liability in the instant case depended upon whether the rubber milling machine was equipped with adequate safety devices. There was substantial proof presented to show it was not. It appears evident from the evidence that were the case retried on all the issues, the result would not be different on the question of liability. Under the circumstances of this case, we believe that the lower court did not err in granting a new trial limited to damages, and that the interest of justice would not be served by incurring the added time and expense necessary for a full-blown retrial. IV. Did the trial court commit reversible error by refusing the jury’s request to view the rubber milling machine? During its deliberations the jury made a written request to see the machine. The request was denied by the trial judge and on appeal appellant contends the denial constitutes reversible error. GCR 1963, 513 states: "Upon application of either party or upon its own initiative, the court may order an officer to conduct the jury as a whole to view any property or place where a material fact occurred.” (Emphasis supplied.) Under the rule the determination of the trial court is made discretionary. Likewise, under well established case law a trial judge may, in his discretion, refuse to permit the jury to view the premises where the injured party claims the accident occurred. Leonard v Armstrong, 73 Mich 577, 581; 41 NW 695 (1889), Mulliken v City of Corunna, 110 Mich 212, 214; 68 NW 141 (1896). We-find no abuse of discretion. The record is replete with photographs, blueprints and drawings of the machine. Further, the record shows that material changes had been made in the machine subsequent to the accident. The safety trip wire had been lowered some six inches. Given these circumstances the trial court may well have concluded that permitting a view would in itself have caused confusion and have been grounds for error. We have reviewed the remaining assignments of error presented by the parties on appeal, and concluded that they either have not been properly preserved for appellate review, or are so insubstantial as to need no formal discussion. The verdict of no cause of action against defendant Michigan Mutual Liability Company in each of the consolidated cases is affirmed. Costs to Michigan Mutual Liability Company against plaintiff Dooms. The verdict against defendant Stewart Bolling and Company in favor of plaintiff Dooms is affirmed with costs to plaintiff. A new trial on the question of damages only is ordered in Sanders v Stewart Bolling and Company, with costs to plaintiff Sanders. Affirmed, costs as indicated above. J. H. Gillis, P. J., concurred. It seems that as Dooms, the regular operator, was running the machine, his left hand adhered to sticky rubber and became entangled in the rollers of the machine. He went for the safety trip cable but was unable,to reach it. Sanders responded to Dooms’ yells, tried to - render assistance, and his right hand became caught in the machine. Eventually, Dooms manipulated the position of his body so as to reach the safety cable and stop the machine; however, not before both men had suffered serious physical harm. See Cova v Harley Davidson Motor Co, 26 Mich App 602, 612 fn 20; 182 NW2d 800 (1970), Williams v Detroit Edison Co, 63 Mich App 559, 566 fn 1, 568-569 fn 4; 234 NW2d 702 (1975). One can fully appreciate the wisdom of Judge (now Justice) Levin in Cova v Harley Davidson Motor Co, supra, 614, when he suggests that: "Indeed, it might be helpful if we abandoned the continued use in this context of our present and misleading terminology of warranty and representation, express and implied, and strict liability in tort, and simply refer to the manufacturer’s liability by the neutral term 'product liability’.” Compare Awedian v Theodore Efron Mfg Co, 66 Mich App 353; 239 NW2d 611 (1976). The term "strict liability in tort” as used in this opinion and as used in prior opinions (see Williams and Cova, supra) refers to strict liability in tort as defined in Restatement Torts 2d, § 402A. It does not refer to what often is the lay understanding of such term, viz: liability without fault or absolute liability. This is not to say that the scope of strict liability in tort as provided in § 402A of the Restatement equals the scope of our fitness warranty. It does not. A particular product could be unfit for the use intended without being unreasonably dangerous. See Doelle, Product Liability Law in Michigan, 54 Mich State B J 866, 874 (Nov, 1975). In retrospect this author concedes that when he wrote in Casey, supra, p 218, “Contributory negligence remains a defense. In this regard, we are well aware that the jury may have determined * * * the proximate cause of the injury was plaintiffs own negligence” he inadvertently conveyed the impression that in all implied warranty actions contributory negligence was a defense. As stated in the discussion above the author only intended to state that plaintiffs own negligence, if found to be the cause of the accident, remains a defense. "Where a person must work in a place of possible danger, the care which he is bound to exercise for his own safety may well be less, due to the necessity of giving attention to his work, than is normally the case.” Byrnes v Economic Machinery Co, 41 Mich App 192, 202; 200 NW2d 104 (1972). Scho v Socony Mobil Oil Co, Inc, 360 Mich 353; 103 NW2d 469 (1960), Lawrence v Tippens, 53 Mich App 461, 466; 219 NW2d 787 (1974). Arnsteen v United States Equipment Co, 390 Mich 776 (1973). See decisions cited in Benmark v Steffen, 9 Mich App 416; 157 NW2d 468 (1968).

Quinn, J. Defendant was charged with first-degree murder in a two-count information. Count I charged deliberate and premeditated murder; count II charged felony murder. Both offenses are specified in MCLA 750.316; MSA 28.548 as murder in the first degree. The evidence at trial supported both counts. The jury verdict was guilty of first-degree murder. Defendant was sentenced and this appeal followed. The only issue raised that merits discussion is stated by defendant as follows: ’’Did the trial court’s instructions fail to adequately inform the jury as to their obligation to reach a unanimous verdict?” This issue was not preserved for appeal, but it has been resolved contrary to defendant’s position, People v Fullwood, 51 Mich App 476, 481; 215 NW2d 594 (1974), lv den, 393 Mich 785 (1975). Furthermore, as stated in People v Sparks, 53 Mich App 452, 458; 220 NW2d 153 (1974), lv den, 393 Mich 135; 224 NW2d 481 (1974): "Functionally, premeditation and the proof of a felony serve the same purpose, elevating an otherwise second-degree murder to the crime of murder in the first degree.” Finally, "appellate courts should not reverse a conviction unless the error was prejudicial”, People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972). If any error occurred, no prejudice has been shown. Affirmed. Danhof, P. J., concurred.

N. J. Kaufman, J. Defendant State Highway Commission filed this interlocutory appeal, by leave granted, of two Ingham County Circuit Court orders, one granting plaintiffs’ request for a preliminary injunction and the other denying defendant’s motion for summary judgment. The catalyst for this litigation was an attempt by defendant to conduct an "Act 51 audit” of the plaintiff Oakland County Road Commission. Act 51, 1951 PA 51; MCLA 247.651 et seq.; MSA 9.1097(1) et seq., inter alia, created the motor vehicle highway fund and established a pattern for the distribution and use of monies collected. At the time the audit was attempted, the act provided that the fund be apportioned as follows: "(a) 44.5% thereof to the department of state highways, (b) 35.7% thereof to the several county road commissions of the state, and (c) 19.8% thereof to the incorporated cities and villages of the state”. The act prescribes formulas for determining the amount to be allocated to each county, city and village. See MCLA 247.660a; MSA 9.1097(10b), MCLA 247.662; MSA 9.1097(12), MCLA 247.663; MSA 9.1097(13). It also explicitly details the purposes for which the money may be spent and the amounts to be expended for each purpose by counties, MCLA 247.662; MSA 9.1097(12), and by cities and villages, MCLA 247.663; MSA 9.1097(13). The failure by any county road commission, city or village to apply the funds as prescribed shall result in the forfeiture of all fund allocation for one year. MCLA 247.666; MSA 9.1097(16). Defendant adopted the Act 51 audit as a method of insuring that the funds are expended as the act requires. Since 1971, some 21 audits have been conducted on a random, "spot-check” basis. Plaintiff Oakland County Road Commission objected to such an audit being conducted. The commission recognized the defendant’s right of access to its books and records but objected to the formal audit. In resisting the audit, the commission raised three objections. First, it argued that within the past year, it had been audited by both a private CPA firm and the Michigan Department of Treasury, and that the additional audit proposed by the defendant constituted an unnecessary interference with the day-to-day operations of the commission. Second, the commission contended that the defendant and its individual auditors were using the Act 51 audits as a financial blackmail tool to exert administrative control over the local commissions beyond that authorized by the Constitution of 1963 and the various legislative enactments. The commission’s final argument, and the one which concerns us most, was that the defendant was not authorized to conduct audits of local commissions. That authority, plaintiff claimed, is vested solely in the Treasury Department and the Auditor General. When the defendant insisted on its right to conduct the proposed audit, the Oakland County Road Commission, joined by the County Road Association of Michigan and the various individual plaintiffs, filed suit in Ingham County Circuit Court on October 24, 1974. The complaint requested both preliminary and permanent "restraining orders” against further Act 51 audits. In addition to the objections already raised by the Oakland County Road Commission, the complaint alleged that the audits were an illegal waste of tax money. In granting plaintiffs’ request for a preliminary injunction, the court indicated his initial impression that the law probably required audits of this type to be conducted by independent auditors employed by the Treasury Department or Auditor General. He also indicated his feeling that there was some merit to the plaintiffs’ charge that the defendant was using the Act 51 audits to coerce the county road commissions into accepting its policy pronouncements since the alternative would be a refusal by the defendant to furnish the local commissions their share of the gas and weight taxes. Having concluded that the plaintiffs appeared to possess the superior equities, the trial judge then went on to consider the question of possible irreparable injuries. He concluded that the defendant would not suffer any irreparable injury if the preliminary injunction were granted since it could always request the Treasury Department or the Auditor General to conduct the audit. On the other hand, he reasoned that the plaintiffs would suffer irreparable injury if the local commissions remained subject to the type of coercive audits alleged in their complaints. Our granting of defendant’s motion for interlocutory review places this action in an interesting posture. To decide the validity of the preliminary injunction, we must determine whether defendant is empowered to conduct the challenged audits. In doing so we will, perforce, be rendering an ultimate disposition of the case. We feel that to now reverse our decision to grant the appeal would result in an unnecessary delay in the proceedings. We, therefore, proceed to determine the legality of the "Act 51 audit”. Explicit statutory authority for the audits does not exist. The parties’ arguments, thus, are focused on whether statutory and case law give defendant the power to audit by implication. Defendant argues that authority is created by implication from a number of sources. Defendant cites MCLA 247.664; MSA 9.1097(14), as the foundation of its argument. That statute provides in relevant part: "In addition to all other requirements provided by law, the * * * duties hereinafter specified, concerning the administration and use of funds allocated by this act, are hereby imposed upon the state highway commissioner * * * . "(c) All county road commissions * * * shall keep accurate and uniform records on all road and street work and funds, and shall annually report to the state highway commissioner at the time, in the manner and on forms prescribed by him * * * the receipts and disbursements of road and street funds. "(e) The state highway commissioner shall report annually to the governor and the state legislature, * * * and in such report he shall give an account of all expenditures of funds allocated from the motor vehicle highway fund to the * * * county road commissions "(g) All payments and returns of funds provided for in this act shall be withheld from * * * any county road commission * * * for failure to comply with any of the requirements of this act, and such withholding shall continue for the period of noncompliance.” (Emphasis supplied.) The defendant argues that, in order to properly "account” to the Governor and Legislature, as the statute requires, it must audit the local commissions. Having stated the premise that audits are necessary if the defendant is to satisfy its duty of accounting to the Governor and Legislature, reliance is next placed upon MCLA 247.807(n); MSA 9.216(7)(n), which states that the defendant has the power: "[t]o do anything necessary and proper to carry out the duties imposed on it by the constitution and such other duties as may be imposed by law.” In addition to the statutory language, defendant contends that legislative intent to allow Act 51 audits is manifested by the Legislature’s failure to object to the audits performed since 1971. Defendant also utilizes an affidavit which states that, beginning in fiscal 1973, the defendant requested and received from the Legislature funds for Act 51 audits and authorization for an additional auditor position with designated responsibility for local government audits. The plaintiffs do not dispute the affidavit, but they do point out that the appropriation acts themselves contain no overt indication of such an appropriation. Each party cites Coffman v State Board of Examiners in Optometry, 331 Mich 582; 50 NW2d 322 (1951), as support for its position. Defendant contends that the power to audit is a necessary extension of its supervisory role over the highway fund and over the recipients of monies from the fund. Defendant’s theory is supported by language in the Coffman opinion which provides: " 'In determining whether a board or commission has a certain power, the authority given should be liberally construed in light of the purposes for which it was created and that which is incidentally necessary to a full exposition of the legislative intent should be upheld as being germane to the law.’ ” 331 Mich at 590, quoting 42 Am Jur, Public Administrative Law, §26, pp 316-318. Plaintiffs respond that defendant does not have the supervisory power from which the power to audit may be implied and, in any case, " 'powers should not be extended by implication be yond what may be necessary for their just and reasonable execution.’ ” Id. Plaintiffs argue further that there is a presumption against the implied extension of agency powers, Sebewaing Industries Inc v Village of Sebewaing, 337 Mich 530; 60 NW2d 444 (1953), and that an agency cannot create powers for itself merely by assuming them. Mason County Civic Research Council v Mason County, 343 Mich 313; 72 NW2d 292 (1955). The foundation of the plaintiffs’ argument is that the defendant has never expressly been given control over the motor vehicle highway fund or the authority to audit local government expenditures of fund monies. The control argument is designed to defeat the defendant’s argument that the power to audit is necessarily implied from its statutory duties. The plaintiffs argue that the rule of Coffman and other similar cases applies only when an agency has general supervisory powers. They reason that since, under the motor vehicle highway fund act, the defendant and the governmental plaintiffs share a common status as recipients of fund money, there is no basis for contending that the defendant should have power over its fellow recipients. After pointing out that the power to audit is not expressly granted to the defendant, the plaintiffs go on to note that the audit power is expressly granted to the Treasury Department. The power was originally vested in the elected Auditor General by MCLA 21.45; MSA 3.595: "The auditor general shall hereafter be the supervisor of the accounts of * * * all county offices. He shall have the power, and he is hereby directed, to examine or cause to be examined, the books, accounts and finan cial affairs * * * of each county office * * * . Such examination shall be made at least once in each year, or as often as in the judgment of the auditor general it shall be for the public good.” These powers were then transferred to the Treasury Department by MCLA 16.180; MSA 3.29(80). The plaintiffs argue that, since the power to conduct Act 51 audits is solely, though not by name, given to the Treasury Department, it cannot be said that it was impliedly granted to the defendant. It, thus, cannot be argued that such an implication is necessary since the defendant can always call upon the Treasury Department to conduct such audits. In response, the defendant argues that the Treasury Department is spread too thin to successfully audit county road commissions and that it conducts general audits of whole county governments and does not focus to the extent usually necessary to uncover improper expenditures of fund money. Historically, the defendant notes, whenever the Treasury Department has uncovered an indication of misspent highway funds, it has merely referred the matter to the defendant for an intensive audit. From a review of the authority cited by the parties and an examination of the relevant statutory provisions, we find plaintiffs’ position to be the more cogent. We, therefore, hold that defendant is without authority to conduct Act 51 audits. We base our holding on two findings: (1) that Michigan law requires a more explicit grant of the power to audit than defendant alleges as its authority here and (2) that defendant does not have general supervisory control over the motor vehicle fund and its recipients sufficient to provide the authority to conduct an Act 51 audit. First, in providing for accounting and auditing for local governments, Const 1963, art 9, § 21 requires specific grants of power to perform public audits. That section mandates: "The legislature shall provide by law for the annual accounting for all public moneys, state and local, and may provide by law for interim accounting. "The legislature shall provide by law for the maintenance of uniform accounting systems by units of local government and the auditing of county accounts by competent state authority and other units of government as provided by law. ” (Emphasis supplied.) We read this provision as requiring a specific grant of power by the Legislature to any governmental entity seeking to audit another entity. The Legislature has so provided in a significant number of instances. See e.g. MCLA 46.6; MSA 5.326 (examination of county treasurer accounts by the board of supervisors), MCLA 46.63; MSA 5.573 (finance committee audits for counties with population exceeding 75,000), MCLA 42.30; MSA 5.46(30) (annual audit by independent auditor required for all charter townships), MCLA 124.505; MSA 5.4088(5) (accounting between units under the urban cooperation act), MCLA 141.421; MSA 5.3228(21) (uniform charts of accounts by state treasurer for all governmental units), MCLA 722.230; MSA 25.445(30) (explicit grant of authority to crippled children commission to audit books of treatment facilities). Specifically, as plaintiffs note, the Treasurer, as successor to the duties of Auditor General, is the sole governmental unit given the duty to formulate a uniform system of accounts for counties and responsibility to audit those accounts. MCLA 21.45; MSA 3.595. The fact that the Treasurer has asked defendant to conduct some of these audits does not give defendant the power to do so on its own. The Treasurer appointed defendant under its express, correlative power to appoint such auditors as may be necessary. Id. Two other enactments indicate the Treasurer’s exclusivity of auditing power over counties and their commissions. MCLA 750.492; MSA 28.760 provides that while county, city or township records shall be open to examination by the public, the only individual allowed to remove the books for a full audit is the state Treasurer. More significant to our purposes, and indicative of legislative intent, is 1975 PA 199, an amendment to the general highway law. Prior to this act, § 25 of the general highway law, MCLA 224.25; MSA 9.25, required boards of county road commissioners to keep detailed records of "all money received and disbursed” and of "all work done”. All monies from the motor vehicle highway fund must be kept in a separate account. MCLA 247.662(g); MSA 9.1097(12)(g). Pursuant to MCLA 247.665; MSA 9.1097(15). "On or before the first day of April of each year, each county road commission and the clerk of each incorporated city and village shall file with the state highway commissioner and the clerk of the county, on forms to be provided by the state highway commissioner, a report showing the disposition of funds appropriated, apportioned or allocated under this act, to such county and incorporated city and village.” The enactment of 1975 PA 199, MCLA 224.26-224.32; MSA 9.126-9.129(12), makes it clear that defendant’s duty to account for expenditure of funds requires it to be no more than a clearing house for these reports and that any auditing of county road commissions is to be done by the Treasurer. Section 27, MCLA 224.27; MSA 9.127, mandates an annual audit of county road commissions is to be done by the Treasurer. Section 27, MCLA 224.27; MSA 9.127, mandates an annual audit of county road commission books by an independent certified public accountant. If no audit is made, "the department of treasury shall conduct the audit or cause it to be conducted by a certified public accountant”. (Emphasis supplied.) Any statutory violations disclosed by the audit shall be reported to the Attorney General, not to defendant. MCLA 224.30; MSA 9.129(10). Further, the new act stresses the constitutional requirement that authority to audit be expressly provided in stating: "Nothing in this act shall increase or decrease the powers, duties, and functions, including the authority to audit, of any state agency, department, board or commission relative to the boards of county road commissions as provided by any other law.” MCLA 224.27; MSA 9.127. (Emphasis supplied.) Further evidence of the Legislature’s intent that defendant not be given authority to audit county road commissions is found in its refusal to pass three bills containing an express grant of this power. See 1973 SB 357, 1974 SB 707, 1975 SB 707. We base our second finding, that defendant has no general supervisory power over highway fund recipients, on a reading of the statutory provisions regarding distribution of monies from the fund. The fund is established as a separate fund in the state treasury, MCLA 247.660; MSA 9.1097(10). Monies to counties and municipalities are transfer red directly from this fund, not distributed by defendant. Defendant is but one of the recipients. Defendant’s sole job in connection with distributions to counties and municipalities is a ministerial one, that of computing the amounts to be given to each recipient in connection with state trunk line highways. This duty entails only a mathematical calculation based on a statutory formula. Defendant’s only direct control over counties and municipalities concerns joint projects for widening and repair of state trunk line highways. Such control deals with construction, not auditing. See MCLA 247.651d; MSA 9.1097(ld). Other monies from the fund are transferred directly by the Department of Treasury pursuant to established, statutory guidelines. For the reasons enunciated above, we, therefore, affirm and remand to the trial court for entry of a permanent injunction against defendant’s future performance of any "Act 51 audits”. No costs. The office of state highway commissioner was abolished by 1964 PA 286 and all the powers and duties of that office were transferred to defendant state highway commission. MCLA 247.802; MSA 9.216(2). See 1973 PA 124 and 1974 PA 235, the appropriation acts for the highway commission. See also MCLA 247.660h(4); MSA 9.1097(10i)(4), which requires the auditor general to audit the general transportation fund, one created within the motor vehicle highway fund for purposes of urban transportation.

Quinn, P. J. Charged with first-degree murder, MCLA 750.316; MSA 28.548, and assault with intent to commit murder, MCLA 750.83; MSA 28.278, the jury convicted defendant of second-degree murder, MCLA 750.317; MSA 28.549, and assault with intent to commit great bodily harm less than murder, MCLA 750.84; MSA 28.279. He was sentenced and he appeals. Shortly after 8 p.m. on February 26, 1974, defendant entered the Alger Bar in Arenac County. Due to the erratic walking of defendant, the bartender informed defendant that he would not be served. Defendant said nothing and left. An hour later defendant returned at which time the bartender and one customer were the only persons in the bar. After defendant had walked several feet toward the bar, the bartender again informed defendant he would not be served. Defendant walked back to the door, opened it, turned, pointed a gun at the bartender’s direction and fired two shots. One shot fatally wounded the customer. The bartender ran after defendant and tried to pull him out of his vehicle. When he observed defendant reach for an object, he ran to the rear of the vehicle and then heard two shots. The bartender returned to the bar and called the police. At trial, the defendant testified that he was present at the bar and had fired shots. The defense was intoxication. Defendant’s first issue alleges lack of proof of premeditation and asserts as error (a) his bind-over on an open charge of murder, and (b) denial of his motion for directed verdict on the first-degree murder charge. As to (a), it was not raised prior to or at trial and cannot be raised for the first time on appeal, People v Miller, 62 Mich App 495; 233 NW2d 629 (1975). As to (b), defendant’s actions, his return a second time after an hour lapse with a weapon could support an inference of premeditation, People v Juniel, 62 Mich App 529; 233 NW2d 635 (1975). Second, defendant claims error in the instruction on intoxication because the trial judge failed to instruct that intoxication was a defense to first-degree murder and to assault with intent to do great bodily harm less than murder. When the instructions are read as a whole, the instruction on intoxication as a defense applied to all charges on which the jury was instructed, and no objection was made to the instruction given. We find no error. We consider defendant’s third issue to be frivolous. There was evidence to support both charges. Under People v White, 390 Mich 245; 212 NW2d 222 (1973), those charges had to be joined in one trial. Defendant contends that the instruction on intoxication violates People v Crittle, 390 Mich 367, 212 NW2d 196 (1973). The instruction complained about is very similar to the instruction reviewed in People v Scott, 55 Mich App 739; 223 NW2d 330 (1974), namely: a mixture of the capacity standard and the standard required by Crittle, supra. The Scott, supra, analysis of this question is sound and we adopt it as dispositive of this issue. No error occurred. We note again that no objection was made below to this instruction. The remaining issues raised on appeal either have not been properly preserved for review, merit no discussion, or their resolution is unnecessary to the proper disposition of this case. Affirmed. J. H. Gillis, J., concurred.

McGregor, J. Defendant, Allan White, was convicted by a jury of larceny from a motor vehicle, MCLA 750.356a; MSA 28.588(1), and was subsequently sentenced to a term of 3 to 5 years in prison. He appeals as a matter of right. The defendant raises five issues for our consideration. However, only one merits discussion. The defendant claims that the alleged stolen property should not have been admitted into evidence since it was obtained by means of an illegal search and seizure. Before such a claim can properly be assessed, it is first necessary to review the pertinent facts. On the afternoon of June 2, 1974, at approximately 2 p.m., Glenn Stock and his wife arrived at the Brookdale Golf Course, located at Six Mile and Sheldon Roads in Northville. He removed two sets of golf clubs from his car trunk, leaving a new radial spare tire inside. Mr. Stock testified that the trunk lock was in good shape when he left the car to play golf. At approximately 3:30 p.m., Truman Langfield and his son Brad arrived at the Brookdale Golf Course. As Mr. Langfield was driving into the parking lot, he noticed a man roll a new tire through the lot and place it in the trunk of an older car. This aroused Mr. Langfield’s suspicion since the car was not parked in a parking space and no cars in the area were on a jack, as they would be for a tire change. The car into which the tire had been placed was gone by the time Mr. Langfield found a place to park. While his father put on his golf shoes, Brad looked around the area and found two cars with holes punched in their trunk lids. This information was given to someone in the pro shop and relayed to the police. An officer was dispatched to the golf course and took the report. Mr. Langfield was unable fully to describe the occupants, but did describe the car into which the tire had been placed as an older maroon Oldsmobile with extensive right-side damage. After taking the report from Langfield, the officer left a note on Mr. Stock’s car, asking him to call the sheriffs office if anything was missing from his car. At the time this report was taken, an all points bulletin (APB) describing the car was released. Road patrolman Albert Clark was one of the officers to receive the APB. Shortly thereafter, he spotted a car on Haggerty Road, approximately 3-1/2 miles from the golf course. Since there were two men in the car and Officer Clark was patrolling alone, he radioed for a backup unit and told the occupants of the automobile that they were being stopped for speeding. When the backup unit arrived, Officer Clark placed the defendants under arrest for larceny from an automobile. Officer Clark admitted at trial that, at the time of the arrest, the police were not positive that anything had, in fact, been stolen. After the defendants were arrested, the car was searched for fruits of the crime. However, the trunk was not searched at this time, since the officers were unable to find a key which would open it. The occupants and the vehicle were then conveyed to the police station. At approximately 7 p.m., the Stocks finished playing golf and went back to their car. Because the lock was broken, Mr. Stock was unable to open the trunk until he returned home. At home, he finally opened the trunk with a screw driver and discovered that his spare tire was missing. He then telephoned the sheriffs department as the officer’s note had requested. On the following morning the case was assigned to Detective Dennis Rautio, who immediately contacted Mr. Stock and examined the various reports which had already been made, as well as the automobile which had been impounded. Based on this information he had the car towed to Craig Pontiac, a car dealership, in order to open the trunk. After trying various master keys at the dealership, Rautio forced the trunk open with a screw driver. Inside were three new radial tires, including one subsequently identified by Stock as the one taken from his trunk. Officer Rautio did not obtain a search warrant prior to this search. Based on the foregoing facts, we find, as did the trial court, that (1) the police officers had sufficient probable cause to stop defendant’s vehicle and to arrest the defendants, (2) the police officer had sufficient probable cause to conduct an immediate warrantless search of the automobile for fruits of the crime at the time and place of the arrest, and (3) the probable cause factors that developed on the scene still obtained at the police stationhouse, after the automobile was impounded. See Chambers v Maroney, 399 US 42, 90 S Ct 1975; 26 L Ed 2d 419 (1967). The defendant does not seriously dispute the above findings. What the defendant does dispute, however, is the trial court’s finding that the second search could be legally conducted without a warrant. He argues that the intervening time period of approximately 18 hours between the time the automobile was impounded and the time it was searched was too long to justify a warrantless search of the automobile’s trunk. In so arguing, the defendant relies on the following language of Chambers, supra: "Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the 'lesser’ intrusion is permissible until the magistrate authorizes the 'greater’. But which is the 'greater’ and which the 'lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” 399 US 51-52; 90 S Ct 1981; 26 L Ed 2d 428. (Emphasis added.) This language has been interpreted by our Court on two separate occasions. In People v Weaver, 35 Mich App 504, 512; 192 NW2d 572, 575 (1971), our Court reviewed a search conducted some two days after the car had been impounded. Judge (now Justice) Levin held that a 2-day delay in searching the car without benefit of a warrant could not be justified under the Chambers rationale. He stated: "[T]he Court there emphasized that a search of an automobile at the station house without a warrant must be 'immediate’. (In two separate places the Court used the phrase 'immediate search without a warrant’.) The word 'immediate’ must, therefore, be given meaning. !'Immediate’ could mean immediately upon arrival of the automobile at the station house. If that is what it means — and that is how we read it — then the second search here conducted, two days after the automobile was seized, was not an immediate search and, therefore, was not a search validated or approved in Chambers.” (Emphasis added.) However, in People v Gordon, 54 Mich App 693, 697; 221 NW2d 600, 603 (1974), the Court upheld a warrantless search at the station some eight hours after the car had been impounded. The Gordon panel specifically disagreed with Weaver’s analysis of the Chambers decision, stating: "Assuming arguendo that immediacy is mandated where a car has been taken to a police station under circumstances as they appear in the instant case, does a warrantless search thereof by the police some eight hours thereafter meet the required mandate? Our answer is in the affirmative. The word 'immediate’ is not and cannot be construed to be synonymous with the word 'instantly’. In those cases where statutes or insurance policies have required immediate action upon the happening of certain events our Supreme Court has consistently held that only action within a reasonable time is required. ” (Emphasis added.) Assuming arguendo that the intervening time period must be considered where a vehicle has been impounded at a police station, we conclude that the rationale of Gordon, supra, represents a sounder interpretation of the Chambers decision. We agree with the Gordon panel that the Supreme Court did not intend its above quoted language to be as narrowly construed as it was in Weaver. We further agree that a 'reasonable time’ is the proper test. Thus, the crucial question becomes whether the search here involved was conducted within a reasonable time after defendant’s automobile was impounded. We find that it was and, as a result, the stolen property discovered in the trunk was properly received in evidence. The defendant’s automobile was impounded in the late afternoon and was only held overnight before the search was conducted. Such a delay does not seem unreasonable. Furthermore, no officer was put in charge of the case until early the following morning. After the case was assigned to Detective Rautio, he moved quickly to assemble the necessary facts and to commence the search of the automobile. This, also, does not seem to be unreasonable delay. It is not an unreasonable procedure for a large metropolitan sheriffs department to assign the investigation of a case to a single detective. Nor is it unreasonable to wait until the following morning to so assign the case where the accused is being held in custody and the automobile has been impounded. In this regard, we find the following language of Judge 0’Hara”s dissenting opinion in Weaver, supra, to be persuasive: "It seems to me, so to hold is to disregard completely the diffused responsibilities of a modern metropolitan police department with its necessary differing areas of procedural authority. We are not here dealing with a small town constable, or a sheriff in a small county where the lockup, the vehicle impoundment area, the identification bureau, and the administrative section are in a four or five cell jail with a back yard parking area — and the whole operation staffed by one or two persons. To hold that detectives, patrol car drivers, clerk typists, and the impoundment personnel must all drop everything each is doing at the time of one arrest and concentrate upon the search of one car to determine ownership instanter, is utterly unrealistic.” 35 Mich App 504, 520-521. Consequently, we hold that the search in the present case could properly be conducted without a warrant and, therefore, the trial court did not err by admitting the evidence so discovered. We have examined the other issues raised by the defendant and have found none which would require reversal of defendant’s conviction. Affirmed. Bronson, P. J., concurred. The most recent cases of our Court and of the United States Supreme Court do not even discuss this time factor. See People v Tillman, 59 Mich App 768; 229 NW2d 922 (1975), and Texas v White, 423 US 67; 96 S Ct 304; 46 L Ed 2d 209 (1975). Both cases simply held that police officers with probable cause to search an automobile on the scene where it was stopped could constitutionally do so later at the station house without first obtaining a warrant. Based on these cases, it is arguable that the time factor involved is of little import. Nor does it appear that the "Impracticability” of securing a warrant should be considered in this type of case. In this regard, we note that the dissent here is very similar to the dissent in Texas v White, supra. There, Justice Marshall’s arguments were, of course, not accepted by the majority of the Court.

D. F. Walsh, J. Defendant was originally charged with the first-degree murder, MCLA 750.316; MSA 28.548, of Ulysses Thornton. The victim, a store guard, was one of three fatalities resulting from a shooting affray which took place during the attempted holdup of a neighborhood grocery store in Detroit on July 30, 1971. On December 15, 1971, Recorder’s Court Judge Henry Heading accepted the defendant’s plea to second-degree murder, MCLA 750.317; MSA 28.549. He was thereafter sentenced to a term in prison of from 45 to 60 years. On May 22, 1972, Judge Heading vacated that plea and granted defendant’s motion for new trial because the defendant had been insufficiently advised of his constitutional rights during the plea taking. See People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972). Defendant’s motion for a reduction in the charge to second-degree murder was denied by Recorder’s Court Judge John Murphy. On appeal to this court, however, an unpublished order was entered pursuant to People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), remanding the case for trial on the reduced charge. On February 7, 1974, a jury found defendant guilty of second-degree murder and thereafter defendant was sentenced to life imprisonment. He now appeals as of right raising several issues relating to the conduct of the trial. I. On the second day of trial the defendant requested that a new preliminary examination be conducted on the ground that he had just recently learned that the information had been amended to reflect the reduced charge of second-degree murder. The information had previously charged first-degree murder. We uphold the trial court’s denial of that re quest inasmuch as defendant himself had actively sought the reduction in charge prior to trial, and in fact the record reflects a waiver of any objection to the proposed amendment at the very beginning of trial. Moreover, even without the amendment, a charge of first degree murder ipso facto apprises the accused that he must defend against the lesser included offense as well. See People v Paul, 395 Mich 444; 236 NW2d 486 (1975). II. A suppression hearing was held on December 14 and 15, 1971, to determine the admissibility of. testimony relating to a revolver seized by police officers at the time of defendant’s arrest. Defendant contends that this testimony was improperly admitted at trial because the weapon itself was the product of an illegal search and there was no showing that defendant was "connected” with the revolver. On the evening of August 8, 1971, the automobile in which defendant was a passenger was stopped by two patrolmen for a traffic violation— specifically, excessive smoke and noise, for which a citation was later issued. Officer Godor testified at a suppression hearing held December 14 and 15, 1971, that as he approached the passenger’s side of the automobile he looked inside and saw a portion of a revolver protruding from the arm rest between defendant and the driver. The defendant was immediately arrested. From these and other facts adduced at the hearing the trial judge determined the existence of probable cause justifying seizure of the revolver. It is our responsibility to preserve that finding unless we are convinced from a review of the record that the trial court’s conclusion was clearly erroneous. People v Bunker, 22 Mich App 396, 404; 177 NW2d 644 (1970), see also People v Smith, 19 Mich App 359, 367-368; 172 NW2d 902 (1969). We are not so persuaded in the instant case. It is well settled that "seizure of objects within the plain view of an officer, lawfully in a place where he had a right to be, are not proscribed by the Constitution”. People v Whalen, 390 Mich 672, 677; 213 NW2d 116 (1973), People v Kuntze, 371 Mich 419; 124 NW2d 269 (1963). There was sufficient evidence in the instant case to support a finding that (1) officer Godor had a right to be positioned at the side of the automobile in which defendant was riding, having lawfully stopped the driver of the car for a traffic violation, and (2) that the weapon seized was at least partially in plain view. Therefore there was no search for purposes of Fourth Amendment analysis, US Const Am IV; Const 1963, art 1, § 11. People v Kuntze, supra, 425-426, People v Whalen, supra, 677. The second argument concerning the admission of gun-related testimony is that the weapon itself was irrelevant because of a lack of evidence "connecting” him to the seized revolver. Determination of the relevancy of profferred evidence is committed to the discretion of the trial judge; an appellate court should refrain from disturbing such rulings absent a finding of clear abuse of discretion. People v Howard, 391 Mich 597, 603; 218 NW2d 20 (1974). We find no clear abuse of discretion in the instant case. The testimony relating to the weapon was manifestly relevant because expert testimony was introduced which tended to prove that the gun found within arm’s reach of the defendant at the time of his arrest was the weapon used during the commission of the crime. This is a classic demonstration of relevancy. See McCormick, Evidence (2d ed), § 185, pp 434-441. III. The admission of identiñcation testimony Two eyewitnesses, store employees Phillip Pye and his aunt Mary Jo Reese, were permitted to identify the defendant at trial as one of the perpetrators of the attempted robbery. With regard to Phillip’s testimony, the defendant argues that his in-court identification was the product of an impermissibly suggestive pre-custody photographic show up. See Simmons v United States, 390 US 377; 88 S Ct 967; 19 L Ed 2d 1247 (1968), People v Lee, 391 Mich 618; 218 NW2d 655 (1974). However, regardless of the alleged suggestiveness of the procedure used, we find that Phillip’s in-court identification was independently established. See People v McClow, 40 Mich App 185; 198 NW2d 707 (1972). Phillip testified that several hours before the attempteu robbery he had seen the defendant enter a tavern with his accomplice Jordan. When Triplett and Jordan appeared later that evening, Phillip indicated that the store was well lit and that he had a second opportunity to see defendant’s face. The in-court identification by witness Mary Jo Reese is challenged for similar reasons. However, appellate counsel has failed to describe sufficiently any error alleged to have occurred in the pretrial identification procedure with respect to this witness. Furthermore, the argument for an independently established familiarity with the defendant’s features is even stronger in this instance. Mary Jo was at the cash register just before closing time when defendant and his accomplice entered the store. The pair were the only nonemployees in the store. Ms. Reese testified that Triplett stood right in front of her for a short period of time, perhaps a couple of minutes, and she remembered speaking to him. There was no error in allowing Ms. Reese to identify the defendant at trial. IV. Admission of ballistics testimony At trial the people’s ballistics expert was permitted to offer testimony, over defendant’s .objection, tending to show that the two bullet slugs recovered from the victim’s body had been fired from a .32-caliber H & R revolver. The weapon tested in support of this opinion was that seized from the automobile in which defendant was a passenger on the evening of his arrest. Neither the revolver nor the slugs were available at trial since these items had been inadvertently destroyed by the Detroit Police Department. There is absolutely no proof that the destruction of this evidence was an act of deliberate suppression. A police officer in charge of the property section testified that the revolver was being held for a carrying a concealed weapon (CCW) charge pending against Triplett but dismissed in April 1972. The revolver was ordered destroyed on June 7, 1972, inasmuch as the CCW file jacket failed to indicate that a homicide charge was still pending. A similar error occurred in the homicide section because the property officer there had not been advised that a new trial had been ordered on May 22, 1972. Acting upon the information available to him, viz., that Triplett had pled guilty to second-degree murder in December 1971, the officer ordered the two bullet slugs destroyed on December 30, 1972. It is forcefully argued by defendant that he was denied the right "to be confronted with the witnesses against him”, US Const, Am VI, Const 1963, art 1, § 20, because the physical evidence which formed the subject matter of a government expert witness’s testimony was unavailable at trial. The fact that defense counsel was able to cross-examine the expert, urges the defendant, was not enough to satisfy the demands of the Sixth Amendment. The primary goal of the confrontation clause was to prevent the use of ex parte affidavits or depositions against the accused in lieu of personal examination and cross-examination of witnesses in the presence of the trier of fact. Mattox v United States, 156 US 237, 242-243; 15 S Ct 337, 339; 39 L Ed 409, 411 (1895), California v Green, 399 US 149, 156; 90 S Ct 1930; 26 L Ed 2d 489, 496 (1970). However, the essence of the confrontation guarantee is "the right of the accused to confront and probe each of his accusers — a narrow adversary activity”. It is because this right is not without limitation that the nonproduction of physical evidence which is the subject matter of testimony given by a government expert witness is not in itself a denial of the right to confront witnesses. A panel of this court so held in People v Eddington, 53 Mich App 200; 218 NW2d 831 (1974), which relied on California v Green, supra, and cited Federal authority we find to be persuasive. United States v Sewar, 468 F2d 236 (CA 9, 1972), for example, involved the admission of blood test results where a lab technician had inadvertently destroyed a blood sample. The admissibility of the test results was not affected by the fact that the sample was unavailable to defense experts since the government’s expert was available for cross-examination. For identical reasons the Fifth Circuit upheld the admission of nitrate tests directly connecting defendant to a bombing incident. The testing procedure in United States v Love, 482 F2d 213 (CA 5, 1973), cert den (sum nom, Oglesby v United States), 414 US 1026; 94 S Ct 453; 38 L Ed 2d 318 (1973), involved the swabbing of defendant’s hands with an acetone solution and subsequent chemical analysis of the acetone swabs. Exclusion of the test results was sought because neither a defense expert nor counsel was present when the tests were conducted and further because the material on the acetone swabs had been consumed in the testing process. Since the government’s witness was himself available for cross-examination, the court found no infringement of the right to confront witnesses. See also United States v Williams, 447 F2d 1285 (CA 5, 1971) cert den, 405 US 954; 92 S Ct 1168; 31 L Ed 2d 231 (1971). In the case before us there is no claim that defense counsel was prevented from questioning the government expert as to the methodology of the ballistics test which formed the basis of his opinion. Of course the defendant was unable to appoint his own expert to perform similar tests, but we note that the defendant in United States v Love was similarly handicapped. Here the government expert was available and the defendant was given the opportunity to "probe the authenticity and accuracy of the sources relied upon” by the expert. United States v Williams, supra, 1289. Therefore the rights secured by the provisions of the confrontation clause have been satisfied in accordance with the applicable law. V. Relitigation of the suppression hearing This case was finally set for trial on the lesser charge of second-degree murder before Recorder’s Court Judge John R. Murphy on February 4, 1974. On that date the trial judge acknowledged that Judge Heading had, prior to the entry of defendant’s initial guilty plea in December of 1971, denied certain defense motions to suppress testimony relating to the revolver and certain identification testimony. Although the trial judge’s reliance on People v Paille #1, 383 Mich 605; 178 NW2d 469 (1970), was technically misplaced in light of the limitation imposed on that case by People v Cason, 387 Mich 586, 595; 198 NW2d 292 (1972), certainly it is true that a trial judge is not required to conduct a second hearing relitigating matters which have been ruled on by the examining magistrate. Denial of a defendant’s motion to suppress on this ground is a matter within the discretion of the trial court. VI. The defendant argues that certain remarks and alleged misstatements made by the prosecutor during his closing argument effectively denied him the right to a fair trial. We have considered these remarks, reviewed the argument and find no prejudicial error. VII. The aiding and abetting instruction The defendant further claims a denial of his right to a fair trial because of several jury instructions either given or requested and not given and because of certain remarks made by the trial judge during his final charge to the jury. Only one of these alleged errors merits discussion. The defendant asserts that since it was the theory of the prosecution that defendant himself committed the homicide of the store guard it was reversible error for the trial judge to read to the jury the aiding and abetting statute. It is true, as defendant points out, that a trial judge may commit reversible error when he gives an instruction unwarranted by the evidence at trial. People v Ware, 12 Mich App 512, 516; 163 NW2d 250 (1968), People v Parks, 57 Mich App 738, 742-745; 226 NW2d 710 (1975). But since in the instant cáse there was evidence tending to prove the joint commission of first-degree murder there was no error in reading the aiding and abetting statute to the jury. People v Mann, 395 Mich 472, 477-478; 236 NW2d 509 (1975), People v Marshall, 53 Mich App 181, 184-186; 218 NW2d 847 (1974). VIII. Sentencing The defendant finally contends that his sentence must be vacated for two reasons: (1) The trial judge assumed his guilt of an uncharged first-degree murder; and (2) People v McMiller forbids the imposition of a sentence greater than the one previously imposed pursuant to a vacated plea-based conviction. At sentencing the trial judge stated his belief that the defendant was "probably guilty” of the felony murder of one of the other individuals shot and killed during the attempted hold up: "You’re right in not expecting any leniency. You were charged with First Degree Murder. I heard the facts in this case and in my mind it certainly was a Murder in the First Degree. It was a Murder perpetrated in the course of a Robbery. Not only Mr. Thornton was killed but the lady who owned the store, Sally Pye, was killed and the other one, the other robber was killed in the course of that Robbery. You are probably guilty of at least two First Degree Murders, the murder of Sally Pye, which was committed in the course of the Robbery and the murder of Mr. Thornton. ” We fail to discern any prejudice inuring to defendant on the basis of the trial judge’s rather candid observation. It is assumed that the trial judge was familiar with and understood the legal implications of the felony murder statute.i ***** He had heard all of the facts in this case. He properly made the observation that the murder of which defendant stood convicted was perpetrated in the course of a robbery. He made the further observation that defendant was "probably” guilty of the murder of the other person killed in the same robbery. This case is distinguishable from People v Grimmett, 388 Mich 590, 607-608; 202 NW2d 278 (1972), in which the defendant was convicted of assault and the judge stated that he was certainly also guilty of murder. Answering the second prong of defendant’s argument we hold that the McMiller rule forbids only the charging of a higher oifense upon the vacation of a plea-based conviction and does not proscribe the imposition of a harsher sentence on the lesser charge provided that sentence is authorized by law. However, if a trial judge does impose a more severe sentence, his reasons for doing so must not be vindictive and must be stated affirmatively on the record. Moreover those reasons "must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceedings”. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969). Since the Pearce rule was not followed in this case we must remand to the trial court for resentencing. Accordingly, the case is remanded for resentencing. People v Triplett, unpublished order, docket no. 15793, July 23, 1973. The people’s ballistics experts were permitted at trial to testify that the slugs extracted from the victim Thornton’s body were fired from the .32-caliber revolver seized from the automobile in which defendant was riding on the evening of his arrest. The suppression of evidence, as it has been variously defined, is not at issue in this case. See, e.g., People v Miller, 51 Mich App 117, 120; 214 NW2d 566 (1974). See also, People v Bendix, 58 Mich App 276; 227 NW2d 316 (1975), Anno: Withholding or Suppression of Evidence by Prosecution in Criminal Case as Vitiating Conviction, 34 ALR3d 16, Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963). The Supreme Court, 1969 Term, 84 Harv L Rev 108, 112 (1970), quoted in US v Williams, 447 F2d 1285, 1289 (CA 5, 1971) cert den, 405 US 954; 92 S Ct 1168; 31 L Ed 2d 231 (1971), reh den 405 US 1048; 92 S Ct 1308; 31 L Ed 2d 591 (1972). See also, People v Eddington, 53 Mich App 200, 202-205; 218 NW2d 831 (1974). And see the concurring opinion of Justice Harlan who would extend the right of confrontation "no farther than to require the prosecution to produce any available witness whose declarations it seeks to use in a criminal trial”. California v Green, supra, 506. (Emphasis in original.) MCLA 767.39; MSA 28.979 provides that: "Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.” 389 Mich 425; 208 NW2d 451 (1973), cert den, 414 US 1080; 94 S Ct 599; 38 L Ed 2d 486 (1973). MCLA 750.316; MSA 28.548. "Sec. 316. FIRST DEGREE MURDER — All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery, burglary, larceny of any kind, extortion or kidnapping, shall be murder in the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.”

N. J. Kaufman, P. J. Both parties appeal from a condemnation award in the amount of $184,127 rendered after a bench trial by the Ingham County Circuit Court. A jury had been impaneled but was, thereafter, waived by both parties. The property in question is located at 115 W. Shiawassee Street in Lansing. At the time of the taking, it was improved by a one-story building which housed the Kewpee Hamburger Shoppe. The property has been owned by defendants Riley since 1924. Defendants Bowlin and Weston and their families have continuously leased the property from the Rileys and operated the Kewpee Hamburger Shoppe since 1924. Under the most current lease, the lessees paid $65 per week plus taxes, utilities, insurance and maintenance. The nature of the business was described in the trial court’s opinion as: "a unique 'hamburger shop,’ which had a wide reputation for both the quality of its product and quickness of service. The 'Kewpee’ was a 'downtown institution’ lying on the fringe of the central business district within easy walking distance from the State Capitol, the commercial center of Lansing, and the ever-growing Lansing Community College. Its drive-in window operation also provided a facility for those who wanted a 'good hamburger’ to drive in throughout the day and evening hours. "The basic costs of this business were excellent. They reflected good controls, careful pricing and competent management. The restaurant had produced substantial profit during the period when other operations were suffering from competition from the new wave of fast-food franchises.” Defendants made several efforts to relocate after they were notified of the condemnation. One branch of the Lansing city government would make an offer, but another branch would prevent the relocation. In one case, necessary rezoning was denied. In another, defendants attempted to rent space in a city parking ramp, but the city would not rent less than 4000 square feet fronting on Shiawassee Street. This meant a difference in rent of $14,000 over the present site. An attempt to erect another building was defeated when the city decided to use the desired space for a parking facility. All of the experts who testified as to the value of the leasehold portion of the condemned property utilized the "income” method of appraisal. This method is determined by capitalizing the landlord’s net income. The estimates varied depending on the factors used in determining net income and on the capitalization rate utilized. The leasehold value was then added to the value of the land itself. One of plaintiffs experts placed the property value at $51,599; the other decided on a figure of $51,264. One of defendants’ appraisers, who did consider the worth of the business, valued the property and improvements at $83,000. Defendants’ other appraiser, Gedrich Management Company, used a number of approaches to estimate the property’s value. Gedrich’s estimates ranged from $169,486 to $202,897. Gedrich used one other approach by which he calculated the real damage caused to the leasehold interest by the fact that Kewpee’s would be unable to relocate in a facility where it would have the same earnings. By multiplying the estimated average yearly loss by the owner’s life expectancy, a figure of $594,457 was determined. The wide variance in estimates resulted from the amount of consideration given to actual profits. The approach relied upon by the plaintiff is solely based upon the economic value of the leasehold. The yearly income that would be produced by the lease is determined by taking a percentage of the gross sales of the business. Necessary adjustments are made to this figure and it is then capitalized to determine the total value of the leasehold or the fair market value. It should be noted that the profit of the restaurant is not at all a factor in this computation. Although the gross sales of the restaurant are used, the figures arrived at by the plaintiff’s experts would be the same whether the restaurant owner was taking home 10% of the gross sales as a net profit or 20% of the gross sales as a net profit. The approach as presented by Gedrich Management on behalf of the defendants, however, does, in one way or another, reflect the actual profit made by the restaurant. Under the income approach the basic figure is determined by using the gross income of the business for computations. However, the capitalization rate chosen, unlike the rate chosen by the plaintiff, was chosen with the profitability of the business in mind. Because of the "longevity” of the particular business and the "particular location with the success of said business”, Gedrich used a capitalization factor of six rather than the multiple of four used in like businesses. The trial court rejected plaintiffs estimates and set the property value at $184,127, a figure in the middle of Gedrich’s first series of estimates. In his opinion, the court makes it clear that he rejected plaintiffs estimates because they did not consider the profits of the restaurant: "Plaintiffs approach in this regard clearly fails to consider the entire parcel of property, its unique location, and particular uses for which it is adapted. Though Plaintiff contends the hypothetical percentage sales formula for rental is actually a greater amount than the fee owner was receiving in rentals, such contention, at the same time, fails to recognize that the particular business being operated thereon was producing a net revenue of almost 25 per cent of its total gross sales. The ultimate, illogical nature of Plaintiffs appraisal is demonstrated by the fact that the total value placed by appraiser Novakoski on the fee exceeds only by a few thousand dollars the average annual earnings of the business for the period 1964 to 1968.” (Emphasis in original.) I. On appeal, plaintiffs first allegation of error is that the trial court’s award was legally erroneous because the court included the going concern value, or good will, in its determination of the condemned property’s worth. Plaintiff bases this assertion on Detroit v Whalings, Inc, 43 Mich App 1; 202 NW2d 816 (1972), Iv den 388 Mich 813 (1972). Defendants respond that the inclusion of going concern value was authorized by the case of State Highway Commission v L & L Concession Co, 31 Mich App 222; 187 NW2d 465 (1971). While the trial court did not specifically use the term "goodwill” in assessing value of the condemned property, it did, in fact, consider such an item. In its opinion, the court stated: "This Court is convinced that Defendant property owners and lessees had a valuable right in the undisturbed possession of the real estate, a right which had value without reference to the lease itself or the length of the lease.” In most cases, no compensation is allowed for such a going concern value of a business operated on the condemned realty. In re Edward J Jeffries Homes Housing Project, 306 Mich 638, 651; 11 NW2d 272 (1943), State Highway Commission v L & L Concession Co, supra at 229. The L & L case, however, held that, in certain circumstances, the going concern value may be recovered as an element of damages separate from the leasehold value. Plaintiff in L&L had an exclusive concession at a race track which the state condemned. In ruling that the loss of this concession could create recoverable damages, the Court stated: "where the value of the leasehold as an estate in land and the value of the business there conducted cannot readily be separated, the valuation ascribed to the leasehold may reflect the value of the business there operated. In such a case it is entirely sound to refuse to award as a separate element of damages anything for loss of going-concern value or goodwill; to do so would be redundant. But where the valuations of the estates of the lessor and of the lessee in land do not reflect the going-concern value of the lessee’s business there operated, then, * * * the going-concern value can, without making the total damages awarded redundant, and, if full compensation is to be paid, must be determined and awarded to a businessman whose business has been destroyed by the taking.” 31 Mich App at 234-35. (Emphasis supplied.) (Footnote omitted.) In Detroit v Whalings, supra, this Court limited the L & L holding. Whalings sought compensation for the loss of a building which had housed one of its stores for over 100 years. The Court held L & L inapplicable. It stressed the fact that, in L & L, the plaintiffs "value as a going concern derived not so much from the quality of its product and service as from its monopolistic position”. 43 Mich App at 9. Two specific differences between the position of Whalings and that of L & L were delineated: "[FJirst, Whalings’ going-concern value does not derive primarily from its location; it does not enjoy a monopoly, and its customers are not a captive audience. "Second, the possibility of ñnding a suitable location nearby with the same or nearly the same convenience factors is not foreclosed by reason of the condemnation herein.” Id. at 9-10. (Emphasis supplied.) We hold that the trial court did not err in considering the going concern value of Kewpee’s in determining the condemnation award. While we find the facts in L&L similar to the instant case, we do not find L & L dispositive. In L & L, good will was considered a separate element of damages. Here, it was deemed part of the value of the leasehold. We hold that, where special facts similar to those present in L&L exist, a court may properly consider goodwill as evidence of the value of the leasehold or the capacity of the realty for use. See Anno., Good Will or ”Going Concern” Value as Element of Lessee’s Compensation for Taking Leasehold in Eminent Domain, 58 ALR3d 566, § 4, p 573-576. As the trial court in the instant case specifically found, the Kewpee Hamburger Shoppe was a unique operation in a unique location. It depended greatly on that location, and any significant move would so greatly impair its business as to nearly destroy it. The trial court found, further, that "[t]he premises were adapted for a particular highly productive use no way dependent on ownership by these particular defendants”. (Emphasis in original.) The importance of Kewpee’s business location is underscored by the fact that, notwithstanding numerous attempts, the parties could not obtain a location remotely comparable to the one condemned. II. Plaintiffs second appellate claim of error is that the trial court erred in holding that interest on the condemnation award be computed from July 3, 1968, the date on which the condemnation action was filed. After interlocutory litigation, on January 18, 1972, the trial court entered an order for immediate possession and required the advance of an estimated just compensation, $47,000. This advance was paid on January 28, 1972. The lessees of the building remained in physical possession until April 1, 1973, pursuant to a lease with plaintiff entered into on January 18, 1972. The instant condemnation was brought under 1945 PA 344; MCLA 125.71 et seq.; MSA 5.3501 et seq., a law authorizing blighted area rehabilitation. Section 3 of the law, MCLA 125.73; MSA 5.3503, provides for the use of condemnation but the law contains no procedural guidelines for such measures. The only guidance is offered in § 5, MCLA 125.75; MSA 5.3505, which provides that the: "local legislative body may institute and prosecute proceedings under the power of eminent domain in accordance with the laws of the state or provisions of any local charter relative to condemnation.” (Emphasis supplied.) In general, case law has equated condemnation awards with all other types of judgments on which interest begins to accumulate on the date of judgment. Campau v Detroit, 225 Mich 519; 196 NW 527 (1923), Friedt v Detroit, 343 Mich 610; 73 NW2d 211 (1955). Where, however, there has been a taking of property during the pendency of the proceedings, interest is allowed from the date of taking. In re Petition of State Highway Commissioner, 279 Mich 285; 271 NW 760 (1937), State Highway Commissioner v Rowe, 372 Mich 341; 126 NW2d 702 (1964). This authority would appear to validate the trial court’s ruling in the instant case. However, the instant proceeding was brought under the provisions applicable to eminent domain for general public purposes, 1966 PA 295; MCLA 213.361 et seq.; MSA 8.261(1) et seq. The advancement by plaintiff of the estimated compensation was made pursuant to MCLA 213.369; MSA 8.261(9). This statutory advance alters the case law doctrine that interest be paid from the date of a pretrial judgment taking. Pursuant to MCLA 213.381; MSA 8.261(21): "Where there has been a prior declaration of taking, interest on the judgment shall commence at the time fixed by the court for the surrender of possession of the property and shall be computed on the amount by which the judgment exceeds the amount deposited pursuant to section 9. [MCLA 213.369; MSA 8.261(9)]. "Interest shall be computed on the amount by which the judgment exceeds the amount deposited pursuant to section 9.” Interest, therefore, should have been computed on the amount by which the award exceeded the advance and should have begun to run as of January 18, 1972, the date on which plaintiff was awarded possession. III. On cross-appeal, defendants claim that the court’s award was improper because it did not set the award at the amount of potential income which defendant restaurant owners would have lost if they had been able to relocate to the next best available location. We disagree. The award was within the maximum and minimum estimates set by the parties and was not clearly erroneous. Muskegon v De Vries, 59 Mich App 415; 229 NW2d 479 (1975), lv den 394 Mich 787 (1975). Further, loss of future profits has been held not to be a separately compensable item of damages. In re Park Site on Private Claim 16, Detroit, 247 Mich 1, 4; 225 NW 498 (1929). This case, is remanded for recomputation of interest consistent with the dictates of this opinion. In all other respects, the trial court is affirmed. No costs, neither party having prevailed in full.

R. M. Maher, J. Plaintiffs appeal from an order granting defendant’s motion for accelerated judgment, GCR 1963, 116. We affirm. Plaintiffs’ complaint, filed May 13, 1975, in circuit court, alleges personal injuries caused by defendant’s negligence in an accident on May 19, 1972, involving their automobile and an automobile driven by defendant. Also alleged was $2,000 damage to plaintiffs’ automobile. On April 11, 1975, plaintiffs, after receiving $4,149.13 from Allstate Insurance under their uninsured motorist coverage, entered into a "trust agreement”. They agreed to hold as trustees for the benefit of Allstate "all rights, claims and causes of action” they might have "because of bodily injury, sickness, or disease or death” arising out of the May 19, 1972, accident. The agreement goes on to provide that: "The Trustee agrees to take, through any representative designated by the Beneficiary, such action as may be necessary or appropriate to recover the damages suffered by the Trustee from any person or persons, organization, association or corporation other than the Beneficiary who may be legally liable therefor, such action to be taken in the name of the Trustee, the Beneficiary to pay all costs and expense in connection therewith. It is further agreed that any monies recovered by the Trustee as the result of judgment, settle ment, or otherwise will be held in trust and paid to the Beneficiary, provided, however any sum recovered in excess of the total amount paid by the Beneficiary to the Trustee under the terms of the above-mentioned policy, shall be retained by the Trustee for his own use and benefit.” On May 1, 1975, an action against defendant was started in district court by plaintiffs as trustees for the use and benefit of Allstate. Recovery of $4,149.13 was sought. Defendant filed his motion for accelerated judgment in the circuit court action. The order granting the motion gave GCR 1963, 116.1(2)(4)(5) as its basis. That portion of plaintiffs’ complaint seeking recovery for personal injuries was properly dismissed under GCR 1963, 116.1(5): "the claim is barred because of * * * assignment or other disposition of the claim before commencement of the action.” The remainder of plaintiffs’ suit, for property damage to their automobile, fails to meet, when standing alone, the circuit court’s jurisdictional requirements, MCLA 600.8301; MSA 27A.8301, and therefore comes under GCR 1963, 116.1(2). Plaintiffs point out that they brought the circuit court action in their individual capacities, while in the district court action they are acting as trustees. This answers a motion for accelerated judgment in the circuit court action under GCR 1963, 116.1(4): "another action is pending between the same parties involving the same claim.” In view of the trust agreement, however, any action against defendant for personal injuries to plaintiffs arising out of the May 19, 1972, accident would have to be brought by plaintiffs as trustees. The agreement plainly states that plaintiffs will hold for Allstate’s benefit "all rights, claims and causes of action”. Though the agreement provides for retention by plaintiff of any sum recovered in excess of the amount Allstate had previously paid, this does not lead to the conclusion that plaintiffs could maintain an action in their individual capacities. We think defendant could properly take the "trust agreement” as plaintiffs’ agreement to hold all their rights, claims and causes of action against him as trustees for the benefit of Allstate. Even though the second paragraph provides for the possible participation by plaintiffs in a recovery against defendant, it is the intent of this paragraph that this recovery would be had in an action commenced by plaintiffs as trustees. The agreement does not indicate any reservation by plaintiffs of the right to bring an action in their individual capacity. The agreement plaintiffs entered into was a "disposition of the claim before commencement of the action” that supported the grant of accelerated judgment against them. We will not speculate on why plaintiffs assented to this broad trust agreement, or what sort of advice was given them. Affirmed, costs to defendant. D. F. Walsh, J., concurred.

F. C. Ziem, J. Plaintiffs appeal from the lower court’s grant of summary judgment in favor of defendants under GCR 1963, 117.2(3) entered on March 2, 1975. On May 8, 1970, plaintiff Annie McCurtis, an employee of the third party defendant Cunningham Drug Stores, Inc., allegedly fell down a flight of steps located in the drug store. The fall occurred while she was proceeding during a work break to the employees’ lunch area which was in the basement portion of the store. The drug store itself was located in the lobby of the Detroit Hilton Hotel and had been rented from the defendants, Detroit Hilton and Hilton Hotels, Incorporated. As a result of this fall, Mrs. McCurtis, who was pregnant at the time, incurred serious injuries and the 12-week old fetus then carried by her was aborted. On May 3, 1973, the present action was commenced against the defendants by plaintiffs Annie McCurtis and Robert McCurtis, the husband of the injured plaintiff, and Annie McCurtis as administratrix of the estate of the unborn infant. In their complaint, plaintiffs alleged that their injuries were sustained as a result of the defendants’ negligence in maintaining the steps. According to plaintiffs, Mrs. McCurtis’ fall occurred because of the slippery condition. Thereafter on June 6, 1973, defendants’ request for an order allowing the issuance of a third party summons/complaint for indemnification purposes against the third party defendant Cunningham Drug Stores, Incorporated, was granted and such complaint was filed on June 7, 1973. On March 13, 1975, defendants filed a motion for summary judgment, a brief and affidavit in support of the motion, and a notice of hearing on the motion. In their motion, defendants alleged that they were entitled to a judgment in their favor, pursuant to GCR 1963, 117.2(3), since the facts clearly indicated that defendant third party was the lessee of the premises and had exclusive control and possession of the area where plaintiff slipped and fell and that as a result, defendants could not be found liable. On March 21, 1975, an order granting defendants’ summary judgment motion was issued. Generally where a premises is leased to a tenant, the lease is considered as equivalent to a sale of the premises for the lease term. See Prosser, Torts (4th Ed), § 63, p 399; Harkrider, Tort Liability of a Landlord, 26 Mich L Rev 260, 383 (1928). The tenant is said to be the owner of the premises and as such is subject to all the responsibilities of one in possession, both to those who enter upon the land and those outside of its boundaries. Prosser, supra, 399. As a result, a landlord who gives up control, possession and use of the land does not have a duty to maintain the premises in a reasonably safe condition and is not liable to persons injured on the premises. Whinnen v 231 Corp, 49 Mich App 371, 375; 212 NW2d 297 (1973), 49 Am Jur 2d, Landlord And Tenant, § 780, pp 722-725. However, it has also been held that a landlord will be liable for the injuries incurred by another even though the landlord has given up complete control, possession and use of the premises where: (1) at the time the premises is transferred to the tenant a hidden dangerous condition exists, the landlord knows or should have known of the condition and fails to apprise the tenant of it, or (2) the premises is leased for a purpose involving public admission and the landlord fails to exercise reasonable care to inspect and repair the premises before possession is transferred. See generally Bluemer v Saginaw Central Oil & Gas Service, 356 Mich 399; 97 NW2d 90 (1959), Samson v Saginaw Professional Building Inc., 393 Mich 393; 224 NW2d 843 (1975), Prosser, supra, 401-402, 403-405. In the above two situations, a party is allowed to recover from a landlord on a nuisance as opposed to negligence theory. Bluemer v Saginaw Central Oil & Gas Co., supra, Prosser, supra, 401-402. To the extent that plaintiffs contend that a nuisance theory was alleged, an examination of plaintiffs’ May 3, 1973 complaint, indicates that they are clearly wrong. Plaintiffs brought this action alleging that the defendants owed a duty "to exercise reasonable care and caution in and about the management of said premises and to keep the same in reasonable safe condition for the plaintiff and other persons in said hotel for the purpose of purchasing hotel accomodations and ancillary services * * * (Plaintiffs’ complaint paragraph 5). Plaintiffs also alleged: "That disregarding said duties the said defendants, by their agents and employees, failed to exercise reasonable and ordinary care and caution in the maintenance of said premises in the following manner, to-wit; carelessly, recklessly and negligently allowed and permitted their stairs to be in dangerous and unsafe condition in that a slippery substance was left on said stairs or that said stairs in its natural state was slippery * * * (Plaintiffs’ complaint, paragraph 6). Plaintiffs further alleged: "That defendants . . . were then and there guilty of one or more of the following negligent acts and omission in violation of their duty to plaintiff: a) * * * allowing a slippery substance to be deposited and/or remain on the stairs * * * b) * * * failing to remove said substance * * * c) * * * allowing and permitting to remain in a slippery and dangerous condition * * * d) * * * failing to give notice or warning * * * of the dangerous condition thereof caused by said substance left on said stairs and/or condition of said stairs * * * » (plaintiffs’ complaint, paragraph 7). "That defendants, * * * knew of the fact that a slippery substance had been left upon the said stairway for a period of time * * * (Plaintiffs’ complaint, paragraph 8.) Thus the plaintiffs’ complaint is based on negligent maintenance of the premises and not nuisance as averred in plaintiff-appellants’ brief. Appellant asserts that a close reading of the lease between the defendants to this action reveals that there are ambiguities in said lease which present questions of fact regarding who was in control of the stairway on which the plaintiff herein fell. All of the points raised by the plaintiff-appellants with regard to the lease agreement are irrelevant. The basic question is whether the defendant had control of the premises where the plaintiff allegedly was injured. The uncontroverted affidavit of Josef Christof is "that the stairway upon which the plaintiff * * * allegedly slipped and fell is entirely within the control, possession and use of Cunningham Drug Stores, Inc., and that the Detroit Hilton has no access to the area for any reason whatsoever nor does it enjoy any possession or use of that property”. The trial court granted the motion for summary judgment on the basis that there was no genuine issue as to any material facts. "when the summary judgment sought asserts the absence of a genuine issue of material fact under Rule 117.2(3) and is supported by affidavit or other proofs, the opposing party must come forward with affidavits or other proofs of his own to establish that a genuine issue of material fact does exist.” Durant v Stahlin, 375 Mich 628, 656 (1965) The uncontroverted affidavit verifies that the stairway on which the plaintiff allegedly slipped and fell was entirely within the exclusive control, possession and use of the tenant (Cunninghams) pursuant to the lease agreement between Detroit Hilton and Cunninghams and therefore the court was correct in granting the defendant-appellees’ motion for summary judgment. Affirmed.

McGregor, J. Before the present action was commenced, plaintiffs had sought to have their property in West Bloomfield Township rezoned from R-15, residential, to 0-1, office buildings. This change in zoning was desired because plaintiff Harris W. Mainster, a doctor, had offered to purchase the property, subject to rezoning, for use as an office or clinic. The defendant township’s board, however, denied this request. The plaintiffs then brought the present action to challenge the validity of defendant’s zoning ordinances as they were applied to plaintiffs’ property. At the close of plaintiffs’ proofs, the defendant made a motion to dismiss, arguing that the presumption that the zoning ordinance was valid had not been overcome by a preponderance of the evidence. After hearing the arguments of counsel, the trial judge granted this motion. Plaintiffs now appeal therefrom as a matter of right. On appeal plaintiffs raise three issues for our consideration. First, plaintiffs argue that the trial court erred in denying plaintiffs’ motion for summary judgment based upon the alleged failure of defendant to file a resolution as required by MCLA 125.272; MSA 5.2963(2). We disagree. We find that this pretrial motion by the plaintiffs was properly denied under the facts of the present case. In George E. Snyder Associates, Inc v The Midwest Bank, 56 Mich App 193, 195-196; 223 NW2d 632 (1974), our Court stated the test to be applied in assessing such a motion: "A motion for summary judgment under GCR 1963, 117.2(3), made before trial has commenced, is not to be granted unless it can be said, giving the benefit of every reasonable doubt to the party opposing the motion, that there is no genuine issue as to any material fact. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973); Rowen & Blair Electric Co v Flushing Operating Corp, 49 Mich App 89; 211 NW2d 527 (1973). In determining whether such an issue does indeed exist, a court is required to consider all affidavits filed in the action 'together with the pleadings, depositions, admissions and documentary evidence then filed in the action or submitted by the parties’. GCR 1963, 117.3.” In the present case, the plaintiffs did not present any documentary evidence that the defendant had failed to file the required resolution. The only thing approaching such evidence was the statement of plaintiffs’ counsel that he had made an examination of the township’s records and had not found any evidence of such a resolution. Additionally, in answer to plaintiffs’ interrogatories, the defendant did not admit that there was noncompliance with the statute, but only that it had insufficient knowledge thereof. In view of these facts and giving the defendant the benefit of every reasonable doubt, we conclude that there remained a genuine issue of material fact as to whether the defendant township had, in fact, complied with the statute. Moreover, the plaintiffs did not renew this motion nor make a similar motion at the conclusion of their proofs. Even had they done so, the result should have been the same. In Northville Area Non-Profit Housing Corp v Walled Lake, 43 Mich App 424, 431, 433; 204 NW2d 274 (1972), the Court stated: "It is a well-settled principle of law that there is a presumption in favor of the validity of a legislative enactment, to wit: the amendment to the city zoning ordinance, by virtue of its adoption. It is also well-settled that he who claims the ordinance to be invalid has the burden of proving the invalidity by a preponderance of the evidence. Jamens v Shelby Twp, 41 Mich App 461 [200 NW2d 479] (1972). "The defendant city refers to Attorney General v Rice, 64 Mich 385; [31 NW 203] (1887), cited by the appellant in its brief, as establishing that the presumption of validity applies 'when nothing appears to the contrary in the legislative journals’. They also say that the presumption of the validity applies 'until irregularity is made affirmatively to appear’ as stated in City of Lansing v Michigan Power Co, 183 Mich 400 [150 NW 250] (1914), also cited by the appellant in its brief. From the record submitted on appeal there is nothing to show any contrary conclusion in the legislative journals nor was there any affirmative showing of irregularity. Thus, the presumption of validity attaches and stands unrebutted.” We find that the record of the present case does not establish by a preponderance of the evidence that the ordinance was not duly enacted. Thus, we must conclude that the enactment met the statutory requirements and that, as a result, the ordinance is valid. The only additional evidence presented at trial on this issue was the testimony of a planning consultant that he did not recall whether the defendant township had filed the required resolution. He, however, was not a public official and therefore, his statements can not be considered binding on the township. In this context, we note that the Court in Northvill, supra, held that even testimony by the city clerk that she had examined the city records and had not found the necessary evidence, would not establish that the ordinance was not validly adopted. The Court therefore held that the defendant city did not sustain its burden of overcoming the presumption of the ordinance’s validity. In the present case, the plaintiffs’ evidence was considerably weaker than that presented in Northville. Consequently, the present plaintiffs must be held to have failed to establish by a preponderance of the evidence that defendant’s ordinances were not validly adopted. The plaintiffs next argue that the township’s zoning ordinances are unconstitutional since they would allow the township to utilize an office building on plaintiffs’ property but would deny Dr. Mainster the same right. Again, we disagree. The effect of zoning ordinances on governmental land use is thoroughly discussed in Annotation, Applicability of zoning regulations to governmental projects or activities, 61 ALR2d 970. That annotation recognizes two majority rules which are relevant to the present case. The first is that governmental agencies are entitled to immunity from zoning regulations where the use of the property in question is in furtherance of a governmental, rather than proprietary function. See also 2 Anderson, American Law of Zoning, § 9.03, p 106. The second is that governmental projects are not subject to zoning regulations if they are expressly exempted by the terms of the ordinance. See also 2 Anderson, American Law of Zoning, § 9.04, p 110. Thus, under either rule, a governmental unit is able to validly subject property to a use which would not be permitted by the zoning ordinances if it were instead undertaken by a private party. The only effective difference between the two rules is that the first requires the use to be in furtherance of a governmental function, while the second imposes no such limitation. Although there is little Michigan authority on this issue, it appears that Michigan does recognize both of the above stated majority rules. In Taber v Benton Harbor, 280 Mich 522, 525-526; 274 NW 324 (1937), the Court stated: "It is the contention of defendant that the erection of the contemplated water tower and tank is an exercise by the city of the police power in performing a governmental function authorized by the charter; that the exercise of said power is a duty incumbent upon the city to provide for the general comfort, safety and welfare of its citizens; and that the city cannot surrender, circumscribe or incumber the power so granted by the charter by the enactment of a zoning ordinance. ’’Although a city may in the construction, operation and maintenance of a water works system be acting, under certain factual circumstances, in a governmental capacity, as a general proposition the weight of authority is to the effect that in engaging in such an enterprise the city acts in a proprietary or private capacity. (Citations omitted.) "Under the circumstances in this case, no sound reason is perceived why the city should not be bound by the ordinance in question so long as such ordinance is in force and defendant is not excepted from its provisions as would be an individual or private corporation in attempting to engage upon the same project under the same conditions. It is undoubtedly true that under the provisions of the charter the city owes a duty to its inhabitants to maintain an adequate water system, but in so providing it cannot proceed in disregard of the plain legislative enactments of the duly elected representatives of its citizens. "The cases cited by defendant to the effect that a municipality may not barter away or surrender any of its sovereign governmental powers are inapplicable and not controlling. Defendant relies on City of Cincinnati v Wegehoft, 119 Ohio St. 136 (162 NE 389) [1928]. It is to be noted that the ordinance there in question speciñcally exempted the municipality from its operation. Whatever is there said relative to the result that would have obtained had the city not been so speciñcally exempted cannot be considered as the established law.” (Emphasis added.) It is clear from the above language that the Court applied the first rule in deciding that the city was not immune from application of the zoning ordinances. Although less clear, it also appears that the Court recognized the second rule and would have allowed the proposed use if the city had specifically exempted itself from the operation of the ordinance. In the present case, the defendant township has specifically exempted certain governmental projects in the residentially zoned area in which plaintiffs’ land is situated. Further, while it is impossible to say exactly what the defendants would build in this area, it appears from the ordinance that they have envisioned only projects of a governmental nature. Thus, under either of the above stated rules, the township does have the power to utilize a non-residential structure within this area, while the plaintiffs clearly do not. We do not believe that application of either rule would result in a denial of equal protection in the present case. The function of the equal protection clause under Federal and state constitutions is stated in Fox v Employment Security Commission, 379 Mich 579; 153 NW2d 644 (1967): "There is no doubt that State legislatures have a broad range of discretion in establishing classifications in the exercise of their powers of regulation. However, the constitutional guarantees of equal protection are interposed against discriminations that are entirely arbitrary. In determining what is within legislative discretion and what is arbitrary, regard must be had for the particular subject of the State legislation. There must be a relation between the classification and the purposes of the act in which it is found.” Thus, when a classification is alleged to deny an individual equal protection of the law, such classification as a general rule must be shown to be unreasonable. The test of reasonableness is satisfied and the discrimination will not be set aside if any set of facts reasonably may be conceived to justify it. It would appear that a reasonable basis exists for allowing governmental uses, but not similar private uses, in residentially zoned areas. A governmental use, be it a police station, fire house, school, or municipal office, serves the residents of a distinct, limited area, and, in order to be effective, must be located as close as possible to those persons. Such is not usually the case where a business enterprise is involved. Further, a governmental use, by practical necessity, must be located somewhere within the boundaries of the governmental unit. As such, the governmental unit does not have the freedom to construct its structures wherever expedient, as does a private business. Nor does the governmental unit have any real freedom not to build essential governmental structures. It must provide schools, fire and police stations, and certain governmental offices, regardless of cost or other considerations. A private business does not face such constraints. We believe that factors such as these reasonably justify the distinction in defendant’s ordinances between governmental and private business use of otherwise residentiary zoned property. The land use needs of a governmental unit, like the defendant, are simply not the same as those of a private business, nor are they even determined by the same criteria. Since such basic differences can provide a reasonable basis for separate treatment, we hold that defendant’s ordinances do not deny equal protection to the plaintiffs. The remaining issue raised by the plaintiffs is without merit. We find that the trial court sufficiently complied with the provisions of GCR 1963, 517.1. As a result, we will not upset the decision of the trial court as it is clearly supportable by the evidence presented. Affirmed.

D. E. Holbrook, Jr., J. Plaintiff entered into a contract with McDe Construction in August, 1969, to construct a building which the plaintiff was to lease to the Federal government for use as a post office. Pursuant to the contract, on June 30, 1970, McDe secured a performance bond and a payment bond from the defendant in favor of the plaintiff. The contract also included a provision requiring all disputes between the plaintiff and McDe to be submitted to arbitration. During late 1969 and early 1970 the City of Roseville stopped work on the project due to a dispute about the elevation of the building. In order to recover some of its additional costs, McDe filed a request for arbitration against the plaintiff pursuant to the contract. Subsequently, the plaintiff filed a counter request for arbitration to recover damages resulting from McDe’s delays. After the arbitration hearing was completed, but before the arbitrator rendered his decision, the plaintiff notified the defendant that McDe was in default on the construction contract. The arbitrator’s net award was confirmed by the Macomb County Circuit Court and affirmed by this Court. The plaintiff instituted the present suit to recover the damages it suffered when McDe defaulted on the construction contract. The damages the plaintiff seeks to recover specifically include those found by the arbitrator to be due to the plaintiff from McDe. In response the defendant filed a motion to strike any reference to the arbitration proceedings in the plaintiff’s complaint. The trial court denied the motion without prejudice, and the defendant filed its answer. Subsequently, the plaintiff filed a motion for summary judgment and the defendant renewed its motion to strike. Following a hearing the trial court granted defendant’s motion to strike and denied plaintiff’s motion for summary judgment. From this action by the trial court the plaintiff appeals by leave granted. The resolution of this appeal turns on the amount of weight we determine that the arbitration award is entitled to. If the award is entitled to no weight, the motion to strike was properly granted since any references to the arbitration award in the plaintiff’s pleading would be immaterial. GCR 1963, 115.2, accord, Stevens v Stevens, 266 Mich 446, 450; 254 NW 162 (1934), Grist v The Upjohn Co, 1 Mich App 72, 86; 134 NW2d 358 (1965), see Forstmann Woolen Co v Murray Sices Corp, 10 FRD 367, 369 (SDNY, 1950). If, on the other hand, the arbitration award is entitled to at least some weight, the trial court improperly granted defendant’s motion. Conversely, the trial court improperly denied the plaintiff’s motion for summary judgment if the arbitration award is admissible and either the defendant failed to plead a valid defense or it is determined that no genuine issue of material fact is in dispute. GCR 1963, 117.2(2), 117.2(3). The summary judgment motion was properly denied otherwise. The parties initially differ on the significance of the fact that the dispute between the plaintiff and McBe was submitted to an arbitrator rather than to a court. We agree with the plaintiff that the award of the arbitrator is equivalent in this case to the judgment of a court. It has long been the policy of this state to encourage the settling of disputes through arbitration rather than through resort to the courts. Detroit v A W Kutsche & Co, 309 Mich 700, 703; 16 NW2d 128 (1944), The Alpena Lumber Co v Fletcher, 48 Mich 555, 569; 12 NW 849 (1882), Chippewa Valley Schools v Hill, 62 Mich App 116, 120; 233 NW2d 208 (1975). In spite of this the defendant argues that the arbitration award is entitled to no weight because it never agreed to submit any of its claims or defenses to arbitration. MCLA 600.5001(1); MSA 27A.5001(1), Grosse Pointe Farms Police Officers Ass’n v Chairman of the Michigan Employment Relations Commission, 53 Mich App 173, 176; 218 NW2d 801 (1974), Iv den 392 Mich 783 (1974). However, both the performance and labor and material payment bonds state that the construction "contract is by reference made a part hereof’. Since the bond was written on a form furnished by the defendant we strictly construe any provisions of the bond against the defendant. Stark v Kent Products, Inc, 62 Mich App 546, 548; 233 NW2d 143 (1975). We view this provision as the defendant’s agreement to be bound by the arbitration clause in the contract between the plaintiff and McDe. Having eliminated the defendant’s secondary arguments in support of its motion to strike, we turn to the defendant’s primary argument. The defendant claims that it should not be bound by the arbitration award against McDe because it had no notice of the arbitration hearing. However, in making this argument the defendant misconstrues the rule on what weight the arbitration award is entitled to. The rule only makes the award against McDe prima facie evidence against the defendant in the present suit. Sauer v Detroit Fidelity & Surety Co, 237 Mich 697, 702; 213 NW 98; 51 ALR 1485 (1927), Norris v Mersereau, 74 Mich 687, 690; 42 NW 153 (1889), accord, Restatement Security, § 139(2), p 372. The rule is subject to qualification though, in that there can be no fraud or collusion between the plaintiff and McDe. Sauer v Detroit Fidelity & Surety Co, supra at 701. This procedure specifically reserves for the defendant the opportunity to present any special defenses that it might have as to its liability. Kent Probate Judge v American Employers Insurance Co, 283 Mich 328, 334-335; 278 NW 85 (1938). The defendant retains the right to prove that it should not be held liable for damages awarded by the arbitrator. The defendant remains free to prove that the damages awarded actually occurred prior to the issuance of the bonds in question. It can also show that certain items of damage included by the arbitrator in the award are not covered by the bonds and therefore the defendant has no liability on those items. Accord, Kent Probate Judge v American Employers Insurance Co, supra at 334. Even so, the defendant argues that cases such as those cited in the preceding paragraphs do not reflect modern due process thinking. See, e.g, Lindsey v Normet, 405 US 56, 66; 92 S Ct 862; 31 L Ed 2d 36 (1972), Gonzales v United States, 348 US 407, 412; 75 S Ct 409; 99 L Ed 467 (1955), Mullane v Central Hanover Bank & Trust Co, 339 US 306, 319; 70 S Ct 652; 94 L Ed 865 (1950). This argument would be very compelling if the arbitration award rendered against McDe was res judicata against the defendant. But since the arbitration award is only prima facie evidence against the defendant in the present action, we cannot say that the defendant was denied due process by not being notified of the arbitration hearings against McDe. All that happens by making such an award prima facie evidence is to shift the burden of proof to the defendant, which in a civil action does not violate due process. See Dick v New York Life Insurance Co, 359 US 437; 79 S Ct 921; 3 L Ed 2d 935 (1959). As a result, unless the defendant is able to prove that a fraud was perpetrated on it, the trial court improperly granted defendant’s motion to strike the arbitration award from the plaintiff’s pleadings. But for the defendant to successfully invoke the defense of fraud in this case it is necessary that it show that the plaintiff was a party to the fraud. Saginaw Medicine Co v Batey, 179 Mich 651, 667-670; 146 NW 329 (1914). The plaintiff may be a party to the fraud without actually participating if there is a fiduciary relationship between it and the defendant or if the plaintiff possessed such knowledge that it reasonably believed that the defendant could not acquire by other means. Sullivan v Ulrich, 326 Mich 218, 221; 40 NW2d 126 (1949), Michigan National Bank v Martson, 29 Mich App 99, 104; 185 NW2d 47 (1970). The duty imposed on the plaintiff though, absent a fiduciary relationship with the defendant, does not require the plaintiff to make an investigation or to take any unusual steps to see that the defendant is acquainted with facts that the plaintiff may logically assume are known by the defendant from other sources. Restatement Security, § 124, comment B, pp 328-329. In this case, based on the record before this Court, we cannot say that the defendant has carried its burden of showing that the plaintiff participated in any fraud on it. While the information concerning the delays caused by the City of Rose- ville was unquestionably material, in our view a reasonable building owner would conclude that the contractor would inform the proposed surety of such problems. The plaintiff was not required to seek out the defendant and detail what it saw to be all the outstanding problems that it was having with McDe when McDe received the bonds. Having determined that the trial court should have denied the defendant’s motion to strike, we now turn to the question of whether the plaintiff’s motion for summary judgment should have been granted. Although fraud may be a valid defense in a suit between a beneficiary and a surety, the defendant has failed to establish that the plaintiff had a duty to take any unusual steps to inform the defendant of any problems. GCR 1963, 117.2(3). The trial court should have granted the plaintiff’s motion for summary judgment as to the issue of liability. GCR 1963, 117.4. Reversed and remanded for proceedings consistent with this opinion. Costs to plaintiff. P. R. Post Corporation is the successor in interest to Penner-Ring Co, a partnership. We shall refer to both organizations as the plaintiff. It is stipulated by the parties that the defendant did not have notice of the arbitration hearing. McDe Co, Inc v Penner-Ring Co (On Remand) (Docket No. 13788, decided September 28, 1973 [unreported]).

M. F. Cavanagh, P. J. Defendant was convicted by a jury of armed robbery, MCLA 750.529; MSA 28.797, and sentenced to 7-1/2 to 15 years in prison. He appeals of right. The case against defendant was based primarily upon the identification testimony of three witnesses, all employees of the credit union. The first witness, the teller who was actually robbed, identified defendant in court as the assailant, although she had been unable to identify him in a pretrial lineup. The other two witnesses identified defendant in court as having been in the credit union on the afternoon of the robbery. Both had identified defendant in a lineup. Neither saw defendant rob anyone. The defense was alibi. The robbery took place between 4 and 5 p.m. Defendant testified that he worked until 3:30 and that he then went fishing until after 6 p.m. Defendant’s testimony was supported by three witnesses, all of whom stated that they were fishing with defendant during that time. On appeal defendant raises four issues. First, defendant argues that on direct examination of the arresting officer the prosecutor elicited testimony concerning defendant’s silence at the time of his arrest. If that were so, reversal would be required. People v Bobo, 390 Mich 355; 212 NW2d 190 (1973). Here, however, defendant did not remain silent. After he had been given his Miranda warnings, in response to the officer’s question, defendant stated that he did not remember where he had been on the date in question. It was this statement that the officer testified to. Defendant’s constitutional right to remain silent was not involved, since defendant did make a statement. People v Bobo, supra, is inapposite. Defendant also claims that the admission of a police officer’s testimony regarding the nature and quality of the pretrial identification was reversible error. The police officer’s testimony was hearsay and inadmissible. People v Poe, 388 Mich 611; 202 NW2d 320 (1972). However, defendant failed to object at trial to this evidentiary error. No objection was made to the questions nor to the hearsay testimony complained of here, although an objection was successfully made to a later question. Since no objection was raised to the admission of the hearsay testimony, the issue of its admission was not preserved for review. People v Buero, 59 Mich App 670; 229 NW2d 880 (1975), People v Coppernol, 59 Mich App 745; 229 NW2d 913 (1975). The prosecutor’s remarks in closing argument are the basis for defendant’s next issue. In final argument the prosecutor vouched for defendant’s guilt: "Now, let me say this; that the evidence and the facts that were brought before you in my investigatory task of this state is a task that came to that witness stand, did not indicate that this defendant was guilty, that the evidence that came out didn’t indicate his guilt; we would have dismissed this case. We have a lot of discretion and authority. If the evidence is not there, we dismiss the case. Mr. Cahalan is allowed to do that. He knows that we are trial lawyers. He can’t possibly oversee every case that comes into Wayne County. When a prosecutor is assigned to a case; that’s his case. He decides what to do. And I can’t speak for every prosecutor in Wayne County; I can only speak for myself and I can tell you right here unequivocably [sic] that if the evidence and facts are not there; if the evidence obtained from that witness stand did not indicate he was guilty, I would not have come before this Court and Jury defending a case that was not there. But, this is your decision. There is a question here, it’s merely a question of who you’re going to believe. I think if you find that, if you find the case; before you decide the case, you have to decide what witnesses were telling the truth and what witnesses were lying.” He needlessly denigrated the role of defense counsel stating that, as a prosecutor, his job was "to see that justice is done” while defense counsel’s job was "to get his man acquitted”. He made improper statements about the alibi defense and the alibi witnesses, including reference to the past misdemeanor convictions of one of these witnesses. All of these remarks were unobjected to; however, defendant argues that the prosecutor’s conduct resulted in a miscarriage of justice. A defendant’s failure to object to improper re marks made by the prosecutor during closing argument precludes appellate review unless an objection and appropriate curative instruction could not have eliminated the prejudice arising from the prosecutor’s statements. People v McLendon, 51 Mich App 543; 215 NW2d 742 (1974). The improper remarks here were unwarranted and wholly unnecessary. We are persuaded that their prejudicial impact could not have been cured by an instruction. From a review of the record in its entirety, one might conclude that the remarks were part of a deliberate course of conduct. It is unfortunate because as a result of this prosecutorial misconduct, a new trial is required. Defendant’s remaining claim of error involves the prosecutor’s improper impeachment of a defense witness. We have already spoken to the reference to the impeachment in the prosecutor’s improper final argument. Upon review of the whole record, however, we do not find that the improper impeachment in itself would require reversal. Reversed and remanded for a new trial. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 684; 10 ALR3d 974 (1966).

R. E. Noble, J. We are asked to determine if defendant State Board of Cosmetology complied with the state Administrative Procedures Act, MCLA 24.201 et seq.; MSA 3.560(101) et seq., in revoking plaintiffs license to operate a school of cosmetology. Plaintiff, a Detroit cosmetology school, received a document December 29, 1971, from defendant. The notice charged that plaintiff violated certain state statutes and board regulations concerning the operation of schools in cosmetology. The spe cifics of the charges need not concern us. The document also informed plaintiff that a hearing on the charges was to be held February 8, 1972. This was the only notice plaintiff ever received. After several delays, the hearing was held before a hearing officer June 9, 1972. The hearing officer’s findings of violations were upheld by the board and on June 27, 1972, the board revoked plaintiff’s license to operate the school. Plaintiff then appealed to the Wayne County Circuit Court, seeking an injunction restraining defendant from revoking plaintiff’s license. The court, on October 11, 1974, issued a summary judgment, under GCR 1963, 117.3, in favor of plaintiff, declaring that the defendant failed to provide the proper notices required by § 92 of the Administrative Procedures Act, MCLA 24.292; MSA 3.560(192). The judge reversed defendant’s revocation of plaintiff’s license. Defendant appeals the grant of summary judgment and argues that the trial judge misconstrued § 92 of the act. The section provides: "Before the commencement of proceedings for suspension, revocation, annulment, withdrawal, recall, cancellation or amendment of a license, an agency shall give notice, personally or by mail, to the licensee of facts or conduct which warrant the intended action. The licensee shall be given an opportunity to show compliance with all lawful requirements for retention of the license. If the agency finds that the public health, safety or welfare requires emergency action and incorporates this finding in its order, summary suspension of a license may be ordered effective on the date specified in the order or on service of a certified copy of the order on the licensee, whichever is later, and effective during the proceedings. The proceedings shall be promptly commenced and determined.” We have our choice of two interpretations of this section. One interpretation, that made by the trial judge and urged on us by the beauty school, would require the following scenario: 1) Board issues personal or written notice, stating facts or conduct that constitute alleged violations; 2) Board provides informal opportunity to show compliance with licensing requirements; 3) If there is no compliance, board issues notice of hearing, with this notice "commencing proceedings”; and 4) Board holds hearings. A second interpretation, that sought and actually followed by the board, eliminates one step from the trial judge’s scheme: 1) Board issues first and only notice, containing facts of conduct that constitute alleged violations and stating that a hearing is scheduled for a certain date; 2) Board provides informal opportunity to show compliance with licensing requirements; and 3) If there is no compliance, board holds hearing as scheduled. The first day of the hearings "commences proceedings”. We opt for the first interpretation, that favored by the trial judge. We hold that, under § 92 of the Administrative Procedures Act, two notices to the licensee are required before a revocation hearing may be held. We choose the four-step interpretation after an examination of several other sections of the act. Were it not for § 92 of the act, we believe that the license revocation proceedings would be governed solely by the act’s "contested case” procedures found in § 71 of the act. MCLA 24.271; MSA 3.560(171). A revocation would follow "contested case” procedures because a revocation is a "determination of legal rights, duties or privileges of a named party”, the definition of a "contested case” found in MCLA 24.203(3); MSA 3.560(103X3). The "contested case” procedure section provides: "(1) The parties in a contested case shall be given an opportunity for a hearing without undue delay. "(2) The parties shall be given a reasonable notice of the hearing, which notice shall include: "(a) A statement of the date, hour, place and nature of the hearing. Unless otherwise specified in the notice the hearing shall be held at the principal office of the agency. "(b) A statement of the legal authority and jurisdiction under which the hearing is to be held. "(c) A reference to the particular sections of the statutes and rules involved. "(d) A short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is given, the initial notice may state the issues involved. Thereafter on application the agency or other party shall furnish a more definite and detailed statement on the issues.” MCLA 24.271; MSA 3.560(171). The enactment of § 92 of the act, over and above the otherwise applicable § 71 of the act, suggests that the license revocation process must have more steps than those delineated in § 71. We should not assume that §92 is merely legislative duplication. The section must be read as requiring something more than the "contested case” procedures found in § 71. That "something more” is a "notice * * * of facts or conduct which warrant the intended action” and an informal "opportunity to show compliance with all lawful requirements”, both to be given before the "commencement of proceedings”. Our holding that a preliminary notice of facts and an informal opportunity to show compliance with all lawful requirements are both required necessarily implies that proceedings are commenced when notice of the administrative hearing is given, for §92 requires that the personal or mailed notice of facts and opportunity be given "[bjefore the commencement of the proceedings”. Were the proceedings to commence when the parties physically assembled for the hearing, then the notice required by §92 could merge with that required by § 71. Only one notice would have to be sent "[b]efore the commencement of proceedings”. As we have concluded, however, two notices are required for license revocation under the Administrative Procedures Act; the necessary corollary to this holding must be that proceedings do not commence under the act when the parties physically assemble. For our reading of the interaction of §§ 71 and 92 to be proper, proceedings must commence with the mailing of the notice of the hearing. This is not an unreasonable interpretation of "commencement of proceedings”. We note, by analogy, that in the civil forum, the filing of the complaint initiates the proceedings. "A civil action is commenced by filing a complaint with the court.” GCR 1963, 101. Finally, the four-step interpretation is preferable because we believe that the Legislature intended to delay the revving up of formal bureaucratic machinery. The delay of formal proceedings, and concomitant provision of informal procedures for problem resolution, implement the legislative intent to allow a licensee to improve its operations without the stigma of formal proceedings. The board finds at least two faults with our reasoning: (1) the interpretation that proceedings are commenced with the filing of a notice — the notice of hearing — could produce the absurd result that an ad infinitum series of prenotice-notices must be sent and (2) the "emergency” language of § 92 clearly implies that only one notice is necessary. Concerning the board’s first contention, we state emphatically that only two notices are required for license revocation under the Administrative Procedures Act. The first, required by § 92, states the facts or conduct which warrant any intended action. This notice may be given personally or by mail. The second, following an informal opportunity to comply, commences the proceedings and must follow the requirements established by §71 of the act. Concerning the board’s second contention, we do not believe that the emergency language of § 92 compels either the four-step or three-step interpretations offered by the parties. As we understand the emergency language of § 92, a board may, in certain cases, send an order informing the licensee of summary suspension of the license, and avoid issuing the notice of facts and providing the informal opportunity to comply. The board must, however, promptly commence proceedings by mailing a §71 notice. We assume that the board might mail the § 71 notice contemporaneous with the emergency suspension. Affirmed. No costs, a public question being involved. If at the informal stage the licensee offers to correct violations, or offers proof that no violations were committed, the board would presumably not hold the hearing. We do not face the question of the board’s obligation to discontinue the proceedings upon an offer of compliance by a licensee. See n. 1, supra. Although we should not assume duplication within sections of the Administrative Procedures Act, MCLA 24.201 et seq.; MSA 3.560(101) et seq., we must note that the act concerning cosmetology inexplicably contains its own revocation procedures in MCLA 338.784(2); MSA 18.164(2): "The board shall not refuse to issue or renew any license as required by this act, or revoke or suspend any such license already issued, except upon 5 days’ notice in writing to the interested parties, which notice shall contain a brief statement of the reasons for the (Contemplated action of the board and designate a proper time and place for the hearing of all interested parties before any final action is taken as hereinafter provided.” We believe that these sparse administrative guidelines are superseded by the more specific guidelines of the Administrative Procedures Act. We believe that MCLA 338.784(2); MSA 18.164(2) should be considered a partial outline of the § 71 requirements of the second required notice — the notice that commences proceedings. We do not consider the cosmetology statutory excerpt to suggest, by negative implication, that the more specific requirements of § 92 of the Administrative Procedures Act are not applicable.

J. H. Gillis, J. A jury convicted defendant of uttering and publishing, contrary to MCLA 750.249; MSA 28.446. She was sentenced to a 2-1/2 to 14 year prison term, and appeals as of right. On June 15, 1973, a woman attempted to cash a stolen check in a Port Huron grocery. The check was drawn on the account of one Shirley Ashford and made payable to Donna McMillan. When the store manager called the bank to verify the check, the woman fled. Three witnesses identified defendant as the woman who attempted to cash the check. On appeal, defendant raises several issues for our consideration. We will discuss them seriatim. I. The Alibi Instruction At trial, defendant presented alibi testimony, and now raises objections to the instruction given the jury on alibi. Defendant urges reversal because the instruction contains language specifically disapproved in People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), viz.: "For cases tried after the publication of this opinion, it will be deemed reversible error (1) to denigrate the alibi defense 'as easily proven and hard to disprove’ or to suggest that it is the burden of the defendant to 'establish’ the defense.” 392 Mich at 240; 220 NW2d at 460. Here the jury was told that an alibi defense "is one easily made or manufactured and likewise hard to disprove”. The instructions also spoke of "sustaining” the defense. The McCoy slip opinion is dated August 2, 1974. The Advance Sheets of Michigan Reports containing the opinion is dated August 30, 1974. We must decide whether "publication” of the McCoy opinion is the date of the slip sheet decision or the date the decision appeared in the Advance Sheets of Michigan Reports. Though at least four opinions of this Court have stated that McCoy governs trials after August 2, 1974, People v Crutchfield, 62 Mich App 149; 233 NW2d 507 (1975), People v Davis, 61 Mich App 220; 232 NW2d 683 (1975), People v Phelps, 57 Mich App 300; 225 NW2d 738 (1975), People v Thomas, 55 Mich App 368; 222 NW2d 320 (1974), there is no indication that in any of these decisions the court was required to focus upon the exact meaning of "publication” of McCoy. The choice of August 30th rather than August 2nd would not have led to a different result in any of these prior decisions, and we feel compelled to distinguish them on that basis. In determining the extent of prospective effect we review other Supreme Court opinions dealing with the prospective timing of a rule the Court has pronounced. In People v Brown, 393 Mich 174, 181; 224 NW2d 38 (1974), the Court stated that the announced rule would govern "cases resulting from charges made on and after the date of this opinion”. In People v Davis, 392 Mich 221, 227; 220 NW2d 452 (1974), the Court limited its rule to "future cases and in pending cases where defendants timely contested”. The decision in People v Tanner, 387 Mich 683, 690; 199 NW2d 202 (1972), was limited by the Court "to those cases in which sentence is to be or has been imposed after date of filing of this opinion and to those cases which on date of filing of this opinion are pending”. (Emphasis supplied.) A new rule in workmen’s compensation which the Court announced in Whetro v Awkerman, 383 Mich 235, 244; 174 NW2d 783 (1970), only applied to claims for . compensation "arising after March 12, 1970, the date of the filing of this opinion”. (Emphasis supplied.) As in McCoy, People v Robinson, 390 Mich 629, 634; 213 NW2d 106 (1973), speaks of publishing rather than filing when setting the operative date. Several Court of Appeals’ opinions have interpreted "[i]n appeals filed after this opinion is published” to mean that the rule in Robinson governs only after the date the opinion appeared in the advance sheets. People v Coppernol, 59 Mich App 745; 229 NW2d 913 (1975), People v Robert Hall, 56 Mich App 10; 223 NW2d 340 (1974), People v Koehler, 54 Mich App 624, 640; 221 NW2d 398 (1974) (dissenting opinion by O’Hara, J.). We believe this to be the better rule. Had the Court in McCoy intended its prohibition to become immediately effective, it could have used a word other than "publication” in expressing that intention. The Court could have spoken of the date of the opinion, the date of its filing or the date of its release. By using one of these phrases, rather than speaking of publication, the Court would have clearly indicated that it intended its pronouncement to be immediately effective. Reading "publication” to mean publication in the Advance Sheets of Michigan Reports allows the bench and bar opportunity to become aware that certain practices, formerly allowed, are now considered error. We should not expect reliance on unavailable judicial pronouncements. We conclude that "publication” used in McCoy means appearance in the Advance Sheets of Michigan Reports and that the prohibition in McCoy against certain language in alibi instructions did not become effective at the time of trial of defendant McMillan. We are forced to repudiate prior statements of this Court holding that McCoy became effective on August 2, 1974, the date of the slip opinion. However, moving the date forward to August 30, 1974, casts no doubt upon the validity of any of the opinions as it would not change the result in any of the prior decisions. The McCoy rule not having been in effect, we find that the alibi instruction given in this case twice informs the jury that proof of alibi is not necessary for acquittal, and emphasizes that the burden of proof beyond a reasonable doubt remains with the prosecution. We find these instruc tions adequate, as when read in their entirety they satisfied existing standards. II. The Cross-Examination Defendant also alleges that the prosecutor improperly cross-examined her, and that reversal is mandated. On direct examination, McMillan testified that she was 29 years old, divorced, the mother of six children and unemployed. On cross-examination, she stated that she had not been employed since her divorce. The prosecutor then effectively and properly impeached her credibility by forcing her to admit that she had, in fact, worked in two different bars. We agree with Judge Kelly’s determination that reference to the fact that the bars were "topless” was irrelevant and improper. Because, however, we find the remainder of his cross-examination permissible, the reference to topless bars does not require reversal. III. Impeachment of Defendant’s Credibility Defendant next argues that her credibility was improperly impeached in that the prosecutor referred to her prior misdemeanor convictions. Our reading of the record leaves us uncertain as to whether the convictions were for felonies or misdemeanors. On direct examination, defendant testified that she was in jail at a certain time. On cross-examination, the prosecutor inquired as to the nature of the crimes that defendant had been jailed for: "Q. Have you been convicted of anything else? ”A. Yes. "Q. What? 'A. I was convicted of shoplifting. "Q. When was that? 'A. During the time I am on probation. ”Q. Would that have been about in September, 1971? ’A. I don’t know. It could have been. “Q. Any other crimes that you have been convicted of? 'A. Soliciting. "Q. Soliciting for what? ”A. What do you mean for what? "Q. Soliciting for what? 'A. I don’t know. I got soliciting. I don’t know for what. "Q. For purposes of prostitution? ”A. They said soliciting. That’s all I know.” Defendant testified that she was convicted for "shoplifting”. This term is frequently used to cover three separate offenses, two of which are felonies, the other a misdemeanor. If goods were "lifted” or stolen from a building, then regardless of the goods’ value, defendant may be convicted of larceny from a building, a felony. MCLA 750.360; MSA 28.592. If defendant "lifts” or steals goods valued at over $100, this fact supports a conviction for larceny over $100, also a felony. MCLA 750.356; MSA 28.588. If defendant "lifts” or steals goods valued at under $100, this fact supports a conviction for larceny under $100, a misdemeanor punishable by 90 days in the county jail. MCLA 750.356; MSA 28.588, MCLA 750.504; MSA 28.772. All three of these offenses are referred to as "shoplifting”. Likewise, defendant testified that she had been convicted of "soliciting”. There is no such offense in Michigan. There are many offenses involving solicitation; some are felonies, some are misdemeanors. For example, accosting and soliciting is a misdemeanor, MCLA 750.488; MSA 28.703; soliciting an athlete is a felony, MCLA 750.124; MSA 28.319; soliciting patients for a dentist is a misdemeanor, MCLA 338.216; MSA 14.629(16); and soliciting anyone to polygamous life is a felony, MCLA 750.441; MSA 28.696. This list is not exhaustive; it is used for illustrative purposes only. It is our belief that defendant’s claim that she was impeached by use of prior misdemeanor convictions is not supported by the record. Even if this assumption was true, People v Renno, 392 Mich 45; 219 NW2d 422 (1974), does not mandate reversal, in that its holding does not constitute a per se reversal rule. Under the circumstances of this case, and assuming arguendo that the convictions were for misdemeanors, we hold the error harmless. People v Roberson, 55 Mich App 413; 222 NW2d 761 (1974). In line with the above discussion, it is our belief that Renno, supra, needs some clarification. It prohibits, for impeachment purposes, the bringing forth of misdemeanor convictions. Renno makes no distinction between high misdemeanor convictions carrying penalties, of up to two years in prison and regular misdemeanor convictions carrying penalties of up to 90 days in jail. In the Renno, supra, opinion, the majority noted that the Michigan Legislature had passed certain statutes enabling people, historically disqualified from testifying by common law, to testify. Common law had prohibited those convicted of "infamous crimes” from ever testifying in a court of law. As Renno indicated, the Legislature changed this situation so that those convicted of "infamous crimes” could now testify, but they were subject to having their credibility impeached by any conviction of an infamous crime. Renno held that from hence forward, only convictions for infamous crimes could be used to impeach a witness. Renno further equated infamous crimes with felonies. We do not think that, in Michigan, the term "infamous crime” can necessarily be equated with the term "felony”. In Attorney General v Montgomery, 275 Mich 504, 513; 267 NW 550 (1936), our Supreme Court defined an infamous crime as follows: "Whether a crime is infamous or not is not determined by the nature of the offense (2 Bouvier’s Law Dictionary [Rawle’s 3d Rev] p 1553, 1554), but by the consequences to the individuals by the punishment prescribed for such offense. Butler v Wentworth, 84 Me 25 (24 Atl 456, 17 L.R.A. 764). Crimes subject to infamous punishments are infamous crimes, and the term ’infamous crime’ means any crime punishable by imprisonment in the state prison.” (Citations omitted, emphasis supplied.) It would then appear that under Montgomery, supra, impeachment should be permissible by use of prior convictions based on a crime punishable by imprisonment in the state prison, regardless of whether it is dubbed "felony” or "misdemeanor”. We do not point out this apparent inconsistency to nitpick at the Supreme Court. Real problems are presented in this area. For example, the crime of unlawfully taking and using an automobile is labeled a misdemeanor, but, nonetheless, carries the possible sentence of two years imprisonment in a state penitentiary. MCLA 750.414; MSA 28.646. On the other hand, the crime of issuing a check without an account or credit is labeled a felony although it also carries a possible maximum sentence of two years in the state prison. MCLA 750.131a; MSA 28.326(1). Under Renno, the prosecutor would be allowed to impeach credibility by using a conviction under MCLA 750.131a; MSA 28.326(1); he would not be able to do so by using one under MCLA 750.414; MSA 28.646. Yet the two statutes carry exactly the same penalties, and we believe, under Montgomery, there is no distinction between them in regards to impeaching credibility. The problem is compounded by the fact that the Legislature has had a difficult time in deciding what constitutes a felony and what constitutes a misdemeanor. Under MCLA 750.7; MSA 28.197, a "felony” is defined to mean "an offense for which the offender, on conviction may be punished by death, or by imprisonment in state prison”. MCLA 761.1(g); MSA 28.843(g), defines a felony as "an offense for which the offender, upon conviction, may be punished by death or imprisonment * * * for more than 1 year or an offense expressly designated by law to be a felony”. A misdemeanor is described as follows: "When any act or omission, not a felony, is punishable according to law, by a fine, penalty or forfeiture, and imprisonment, or by such fine, penalty or forfeiture, or imprisonment, in the discretion of the court, such act or omission shall be deemed a misdemeanor.” MCLA 750.8; MSA 28.198. It is little wonder that trial judges sometimes have difficulty labeling an offense as misdemeanor or felony. The Legislature has broken misdemeanors into two categories, some punishable by imprisonment in the state prison (see e.g, MCLA 750.414; MSA 28.646), and some punishable by a maximum of 90 days in the county jail. MCLA 750.504; MSA 28.772. We think that it would both be more logical and more in spirit with the holding of Montgomery, supra, if the rule of Renno was limited to those crimes carrying a maximum of 90 days in the county jail. IV. Rebuttal Testimony Defendant next alleges reversible error by claiming that the trial judge improperly allowed certain testimony to be presented under the guise of "rebuttal” evidence. At trial, in his case in chief, the prosecutor presented three witnesses who identified defendant McMillan as the woman who attempted to cash the check. Defendant then presented testimony, including her own, that indicated she was elsewhere at the time of the crime. The prosecutor then recalled the three eyewitnesses who then repeated their identification testimony. We find no abuse of discretion on the trial judge’s part. The testimony tended to contradict matters raised by defense witnesses. Even if the testimony was not properly classified as "rebuttal”, it was merely cumulative. See, People v Ames, 60 Mich App 168; 230 NW2d 360 (1975), People v Tocco, 60 Mich App 130; 230 NW2d 341 (1975). Other allegations of error are meritless. Affirmed. D. E. Holbrook, P. J., concurred. As we understand the procedure, after the opinion was signed by the justices of the Supreme Court, the clerk’s office stamped the original "filed August 2, 1974”. This date appeared on all reproductions of the slip opinion although dissemination occurred later. After 100 copies were printed by the Court Crier, but before remittitur (judgment order, which in this case was August 26, 1974), the Clerk’s office mailed slip opinions to the parties, the trial judge, the Court of Appeals and some 60 regular subscribers. Final process issued in accordance with GCR 866 on August 26, 1974, and general circulation was effected in the Advance Sheets of Michigan Reports under date of August 30, 1974. The date of publication of an opinion in the Advance Sheets of Michigan Reports should be included in the later bound volume. Most users dispose of the Advance Sheets pamphlets after the bound volume is received. If our ruling is not changed by the Supreme Court, readers of the bound volumes should hereafter be supplied the Advance Sheet publication date because of its significance. Note that Judge O’Hara’s dissent describes Robinson’s date of publication as January 28, 1974. This was the date of publication in the Advance Sheets of Michigan Reports. That date is nowhere carried forward in the Michigan Reports bound volume 390. At page 630, the decision date is described as December 18, 1973. This would be the date of the slip opinion, the date the clerk’s office stamps the original, "filed December 18, 1973”. Lawyers and judges relying solely on publication in the Northwestern Reporter have yet another problem as the date of the Northwestern Reporter, 2d series publications are different from the Advance Sheets of Michigan Reports. Students of the release and publication of opinions rendered by the Michigan Court of Appeals will recognize another and no less complex set of problems.

T. M. Burns, J. Plaintiffs bring an original mandamus action seeking in effect to have the state funding of the Pontiac Stadium cut off. The complaint requests various forms of relief, including a temporary restraining order, a preliminary injunction, and a permanent injunction against the City of Pontiac and the Pontiac Stadium Authority from spending further appropriations from the Legislature on the stadium; an order of mandamus against state officials from collecting more than 15 percent of wagers; a declaration that the pertinent statutes are unconstitutional; an order that the municipal defendants return appropriations already paid; and other equitable relief. This is the third legal challenge of the statutes which provide for financial assistance in the construction and maintenance of the Pontiac Stadium. The conflict involves recent amendments to the state racing law, MCLA 431.31 et seq.; MSA 18.966(1) et seq. The racing law provides for the regulation and licensing of racing meets and appropriation of funds derived from racing revenue. Under the act, a portion of racing revenue ("deducts”) is returned to local government units for recreational purposes. Originally, § 12 of the racing law required racetrack operators to deduct 15 percent of wagers for operators’ commissions and contributions to the state’s general fund. The state’s share of wagers has in the past been put to a number of purposes, primarily racetrack related. Generally, 20 percent would go to the city or township in which the track was located and differing amounts would go to various 4-H, county and state fair expenses, including purses, awards and maintenance of fairgrounds, particularly as those expenses related to horseracing. The racing law amendment which is of principal interest in this suit is 1972 PA 5. Public Act 5 increased the race meeting licensee’s "deduct” from 15 percent to 16-1/2 percent of total wagers and added a section to the racing law [MCLA 431.43(5); MSA 18.966(13)(5)] which provides for sharing a portion of the state’s share of wagers with a city or county in or adjoining which a licensed track is located, for the payment of annual rentals on a sports stadium. Plaintiffs also challenge the validity of various appropriations acts for the payment of rentals on the Pontiac Stadium and 1974 PA 13 which provides for the disposition of certain amounts of the "deduct” deposited, in the state’s general fund so that such funds may be used to provide financial support for stadium authorities. Does this Court have jurisdiction to grant the relief requested? A. Standing: Lack of standing to sue has been the stumbling block for past legal challenges of state funding of Pontiac Stadium. In Jones v Racing Commissioner, 56 Mich App 65; 223 NW2d 367 (1974), a bettor, a taxpayer, and a state representative sought a declaratory judgment and injunction prohibiting enforcement of the racing law as amended by 1972 PA 5. This Court reversed the judgment of the trial court, which found that the act was unconstitutional. We held that the plaintiffs had no standing to sue under GCR 1963, 201.2(3) because there were only three plaintiffs, nor under the common law since there was no showing that any plaintiff would sustain substantial injury or suffer loss. Under either of the tests of standing recognized in Jones v Racing Commissioner, plaintiffs herein have standing to challenge the expenditure of state funds under the racing law as amended. At least five of the plaintiffs are residents and property taxpayers. In addition, certain plaintiffs are either racetrack bettors or harness horse breeders who allege direct harm as a result of the racing law amendments. We hold, therefore, that plaintiffs as taxpayers and residents have standing to challenge the expenditure of state funds pursuant to the racing law. As bettors and harness horse breeders, plaintiffs have standing to challenge the legality of § 13 of the racing law as amended. B. Collateral Estoppel: Defendants contend that we lack jurisdiction over this action because the various statutes challenged in this suit were held valid by the Wayne County Circuit Court in Hertel v Governor (WCCC Docket 74-24551-CZ). This argument is without merit as in the action in the lower court there was no adjudication on the merits of the substantive issues raised. C. Mootness: Defendants City of Pontiac and City of Pontiac Stadium Authority are correct in their contention that the issue of the validity of the previous appropriations acts challenged by plaintiffs is moot. Public funds paid out of a mistake of law or prior to a judicial determination that the underlying act is unconstitutional may not be recovered because paid out under a claim of right at the time. This does not, of course, preclude plaintiffs from challenging the statute under which such appropriations have been made. D. Mandamus As Remedy: The Attorney General contends that mandamus is not available in this case because plaintiffs seek to prevent state officers from obeying, rather than following, the law. This action, however, has as its thrust the challenge on constitutional grounds of legislative enactments which affect the duties of a state officer. Mandamus actions may be brought to decide constitutional questions of this nature. Deneweth v State Treasurer, 32 Mich App 439, 442; 189 NW2d 10 (1971). Does MCLA 431.43(5); MSA 18.966(13)(5) deny plaintiffs equal protection of the laws? Plaintiffs contend that the statute creates a classification which is arbitrary and unreasonable. Under the statutory scheme, they argue, only Wayne, Oakland and Jackson counties could get stadium funding and because of the December 1, 1971 time limit, only the Pontiac and Detroit stadium authorities would have been able to benefit. This, plaintiffs argue, is unreasonable discrimination in favor of southeastern Michigan communities and against all other Michigan communities. Generally, legislative classification is not invalid if it is reasonable, not arbitrary, rests on some valid distinction, and has a fair and substantial relation to the object of the legislation so that all persons within the class are treated alike. Local No 1644 v AFSC & ME, AFL-CIO Oakwood Hospital Corp, 367 Mich 79; 116 NW2d 314 (1962). The classifications challenged by plaintiffs are based upon geographical location of proposed stadia and time of creation of an authority which has undertaken to construct a stadium. As for the geographical classification, plaintiffs’ argument must fail. Legislation is not constitutionally invalid simply because it affects only one locality within the state. See Tribbett v Village of Marcellus, 294 Mich 607, 618; 293 NW2d 872 (1940). Nor does the scheme of fund distribution under the pre-amendment racing law upset equal protection standards. Rohan v Detroit Racing Association, 314 Mich 326; 22 NW2d 433 (1946). Plaintiffs’ true argument against this legislation concerns its propriety, not its constitutional validity. On that point, plaintiffs’ complaint is with the Legislature, not this Court. Wiles v Liquor Control Commission, 59 Mich App 321, 325; 229 NW2d 434 (1975). We do find, however, one part of the statute to be constitutionally defective. Appropriations under the act are limited to stadium authorities which were organized before December 1, 1971. As a practical matter, the class created by the act was narrowed by the time limit to one city — Pontiac, as it maintains the only existing stadium authority which was created by that date. There is nothing wrong per se with the fact that one city alone benefits from legislation.* * But the act creates a class of several members who are entitled to equal treatment. Class legislation must be: "[U]niform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary sub-classification, it comes within the constitutional prohibition against class legislation.” Haynes v Lapeer Circuit Judge, 201 Mich 138, 141-142; 166 NW 938 (1918). It is generally recognized that local classifications must be created so as to include future members who might qualify and they may not be based on existing circumstances only so as to exclude members of the class who might qualify in the future. No rational basis has been demonstrated for distinguishing between stadium authorities created before December 1, 1971 and those that may be created thereafter. Such time limitation, therefore, is unconstitutional. We find the provision, however, to be severable; the remainder of 1972 PA 5 is valid. Does MCLA 431.43; MSA 18.966(13) embrace more than one object in its title in violation of Const 1963, art IV, §24? Plaintiffs argue that the above section of the racing law is unconstitutional because the title of the statute does not notify the Legislature or the public of the object of providing state financing to a locally situated sports stadium. Certainly, the title of an act need not serve as an index of all the act contains. If the act centers on one principal object which the title comprehensibly declares and if provisions in the body of the act not directly mentioned in the title are germane, auxiliary, or incidental to that general purpose, the constitutional requirement is met. People v Milton, 393 Mich 234; 224 NW2d 266 (1974). The title with which we are here concerned states that it provides for the disposition of the fees derived from race meeting licenses and from wagering on the results of races at licensed race meetings. The object of the contested amendments to the racing law is certainly germane to the stated purpose of disposing of such funds, as that is exactly what those acts provide for. The argument is without support. The relief sought by plaintiffs is denied. No costs. On June 24, 1975, this Court ordered defendants to show cause why the relief sought in the complaint should not be granted, ordered that the motion for temporary restraining order be denied, and further ordered that the motions to dismiss be held in abeyance pending a hearing on the merits. On July 9, 1975, the above order was amended, granting a temporary restraining order against further expenditure of state funds to the City of Pontiac for stadium rentals. On August 19, 1975, the Michigan Supreme Court vacated the temporary restraining order, but refused further jurisdiction in the case. Hertel v Racing Commissioner, 394 Mich 838 (1975). A sum equal to not more than 2%, but not to exceed $2,500,000.00, of the principal amount of bonds issued for a stadium and appurtenant parking and other facilities by an authority organized pursuant to state law before December 1, 1971, from the revenue received from thoroughbred and harness racing shall be returned to a county in or adjoining which a licensed track is located or to a city in that county, if that county or city has obligated itself to pay more than 1/2 of the annual rental for a stadium and appurtenant parking and other facilities for the conduct of sporting events, exhibitions and other general recreational purposes. The sum returned shall be used by that county or city, along with other available funds to the extent necessary, only to pay the annual rental to the authority organized pursuant to state law which acquired the stadium and facilities and leased them to that county or city. A sum returned in this manner shall not be specifically pledged for the payment of the rental or for the payment of any bonds issued in anticipation of the rental. Pari-mutuel wagering shall not be conducted on or in any of these stadiums or appurtenant parking or other facilities.” Amended by 1969 PA 113, § 1, Imd Eff July 29; 1972 PA 5, § 1, Imd Eff February 5; 1972 PA 329, § 1, Imd Eff January 4, 1973; 1974 PA 13, § 1, Imd ESP February 15; 1975 PA 173, § 1, Imd Eff July 20. MCLA 431.43(5); MSA 18.966(13X5). 1974 PA 226 and 1974 PA 236. See e.g. Lemon v Kurtzman, 411 US 192; 93 S Ct 1463; 36 L Ed 2d 151 (1973). See generally, 63 Am Jur 2d, Public Funds, § 7, p 401; 66 Am Jur 2d, Restitution and Implied Contracts, § 144, p 1075. See also e.g. Schwartz v Secretary of State, 393 Mich 42; 222 NW2d 517 (1974), Michigan State UAW Community Action Program Council v Secretary of State, 387 Mich 506; 198 NW2d 385 (1972). Equal protection guarantees are not affronted by legislation which is limited as to the territory within which it is to operate. McGowan v Maryland, 366 US 420; 81 S Ct 1101; 6 L Ed 2d 393 (1961). See also Davidow v Wadsworth Mfg Co, 211 Mich 90; 178 NW 776 (1920). See 16 Am Jur 2d, Constitutional Law, § 503 and cases cited therein. The time limitation is clearly not “essentially and inseparably connected” to the substance of the act. See People v McQuillan, 392 Mich 511, 542; 221 NW2d 569 (1974). Striking the words "before December 1, 1971” from MCLA 431.43(5); MSA 18.966(13)(5) does nothing to the independence and executability of the remainder of the statute. Cf. McQuillan, supra, at 543; 221 NW2d at 584.

N. J. Kaufman, J. Plaintiff Willie Washington appeals from the grant by the Wayne County Circuit Court of a motion made by defendant union and defendant union officers for an accelerated judgment against him, GCR 1963, 116.1(5). The accelerated judgment was based on a finding by the trial court that plaintiffs claim was barred by the statute of limitations. The course of this sustained litigation began on May 1, 1968 when plaintiff was fired from his job at Chrysler Corporation. On November 17, 1969, plaintiff filed a complaint before the Michigan Civil Rights Commission wherein he alleged that he had been discriminated against because of race. The allegation was basically that Chrysler had failed to reinstate plaintiff while they had agreed to reinstate white employees guilty of similar misconduct. On February 8, 1971, the Michigan Civil Rights Commission ordered a dismissal of the charge finding that there was no evidence of unlawful discrimination against the plaintiff. It appears that no appeal was made from the determination of the commission to dismiss the complaint. After the commission’s dismissal of his claim, plaintiff brought suit in Wayne County Circuit Court. The complaint dated May 23, 1972, alleged that plaintiff was discharged for unsubstantiated allegations of misconduct. He alleged further that he had been discharged through the failure of his union and its agents to fairly represent him in good faith during the course of negotiations for his reinstatement. Plaintiff also alleged that he was singled out for particularly strict treatment, possibly on the basis of racial discrimination. Plaintiff requested damages therefor. On October 26, 1972, the parties stipulated to permit plaintiff to amend his complaint. In response to that stipulation, plaintiff, on November 24, 1972, executed an amended complaint. Count I realleged the purported cause of action contained in his original complaint. Count II alleged that plaintiff was a third-party beneficiary of the collective bargaining contract between the union and the company. It was claimed that the union and its agents had breached the contract by failing to fairly represent plaintiff in good faith. Count III alleged that Chrysler Corporation breached the collective bargaining contract and company policy by firing defendant and failing to rehire him. The defendants then filed motions for summary judgment. The court held that the motion of defendant Chrysler Corporation should be denied. An interlocutory appeal was taken and, upon hearing in this Court, it was held that the trial court had erred by denying Chrysler’s motion for summary judgment. Washington v Chrysler Corp, 63 Mich App 156; 234 NW2d 434 (1975). Chrysler is, thus, no longer a party to this litigation. The trial court, however, found that plaintiffs claim against defendant union and its officers was barred by the statute of limitations. It was the view of the trial court that the claim of plaintiff against the union defendants sounded in tort and was therefore barred by the three-year statute of limitations. On appeal, plaintiff utilizes two arguments as a foundation for his contention that the statute of limitations should not have been held to bar his claim: (1) that his claim against defendant union sounded in contract, not in tort, and, therefore, a six-year period should have been applied and (2) that, if the tort limitations period applied, his appeal to the Civil Rights Commission tolled the running of that period. The issue posed by plaintiff’s first appellate contention was recently decided in an extensive and well-reasoned opinion, Glowacki v Motor Wheel Corp, 67 Mich App 448; 241 NW2d 240 (1976). Glowaeki held that claims based on fair representation sounded in tort, not contract. We agree with and adopt the Glowaeki reasoning and holding. We also reject plaintiffs second claim. We hold that a claim to the Civil Rights Commission does not toll the running of a statute of limitations applicable to a civil action arising out of the transaction on which the Civil Rights Commission claim was based. RJA § 5856; MCLA 600.5856; MSA 27A.5856, specifically details the instances in which statutes of limitations are tolled. That section provides: "The statutes of limitations are tolled when (1) the complaint is filed and a copy of the summons and complaint are served on the defendant, or when (2) jurisdiction over the defendant is otherwise acquired, or when, (3) the complaint is filed and a copy of the summons and complaint in good faith, are placed in the hands of an officer for immediate service, but in this case the statute shall not be tolled longer than 90 days thereafter.” The instant facts fall within none of these categories. Defendant union and its officials were not a part of the Civil Rights Commission action, nor were they even served with notice of it. Nonetheless, plaintiff urges that we adopt a judicial addition to RJA § 5856, one based on public policy. In making this argument, plaintiff relies heavily on the case of Culpepper v Reynolds Metals Co, 421 F2d 888 (CA 5, 1970). Plaintiff in Culpepper, claiming that he was the victim of racial discrimination in job promotion, filed a claim with the Equal Employment Opportunity Commission (EEOC). The commission found that there existed probable cause of a violation of Title VII of the 1964 Civil Rights Act. Plaintiff then filed suit against his employer. The trial court dismissed plaintiff’s Title VII claim for failure to file charges within the time limit mandated by law for filing a complaint with the EEOC. On appeal, the circuit court of appeals reversed, and held in part that: "the statute of limitations, which has been held to be a jurisdictional requirement, is tolled once an employee invokes his contractual grievance remedies in a constructive effort to seek a 'private settlement of his complaint’.” (Footnote omitted.) Without making any decision concerning our ability to engraft judicial exceptions onto the statutory provisions for tolling limitation periods, we reject application of the Culpepper case and its reasoning to the instant one. First, Culpepper dealt with a limitation period for filing grievances with an administrative body, not with a statute of limitations for a civil case. Courts have distinguished between the two types of time periods and have exhibited a significantly greater willingness to relax administrative time limitations than to alter those applicable to civil actions. See e.g. White v Motor Wheel Corp, 64 Mich App 225; 236 NW2d 709 (1975), lv den 395 Mich 811 (1975). Second, unlike Culpepper, where the defendant had actual notice of the complaint against it, in the instant case, plaintiffs complaint to the Civil Rights Commission never informed defendant union of any claimed cause of action. Any defendant’s lack of knowledge of a possible lawsuit will inevitably impair preparation and result in the loss of evidence which might otherwise have been preserved. Finally, and most significantly, unlike Culpepper, the remedies sought here by plaintiff were not concurrent in scope, purpose or source. Administrative and civil remedies differ in both substance and procedure. As another panel recently noted in a. case which also involved a claim of discrimination in employment, "[t]he independent source of the various remedies available to an employee subjected to alleged discrimination precludes us from accepting the * * * claim that pursuit of one remedy should toll the limitation period applicable to another remedy.” Chrysler Corp v Michigan Civil Rights Commission, 68 Mich App 283; 242 NW2d 556 (1976). We choose to follow recent decisions which have stressed the independence of the contractual, statutory and constitutional rights which an employee may assert against discriminatory employment practices. Johnson v Railway Express Agency, Inc, 421 US 454; 95 S Ct 1716; 44 L Ed 2d 295 (1975), Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), Guy v Robbins & Myers, Inc, 525 F2d 124; 44 USLW 2220, (CA 6, 1975) (which rejected Culpepper v Reynolds Metals Co, supra). See also Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 (1971). For the above reasons, the trial court is affirmed. Costs to defendants-appellees.

Per Curiam. Defendant, James Donald Freed, was convicted of carrying a concealed weapon, MCLA 750.227; MSA 28.424, and carrying a firearm with unlawful intent, MCLA 750.226; MSA 28.423, on June 6, 1974, after a two-day jury trial. On July 16, 1974, defendant was sentenced to concurrent prison terms of 2-1/2 to 5 years on each count. Defendant appeals as of right. Defendant was arrested by Michigan State Police officers pursuant to a bench warrant issued by the Ingham County Circuit Court which was hearing a tax case in which the defendant was being sued by the State of Michigan. In a search incident to the arrest, the officers found and seized a .22-caliber pistol which defendant was carrying concealed on his person without a license to do so. Defendant moved to suppress the evidence on the grounds that it was the fruit of an illegal arrest. Defendant’s motion was denied. Defendant contends that his arrest by the Michigan State Police was unauthorized and unlawful, relying on MCLA 28.6; MSA 4.436. The statute provides in pertinent part: "Any such member of the said department may serve and execute all criminal and civil process, when directed to do so by the governor or the attorney general, in actions and matters in which the state is a party. The commissioner and said department shall be under the immediate control and direction of the governor, and any member thereof may be employed by the attorney general in any investigation or matter under the jurisdiction of his department.” Defendant contends that his arrest was in contravention of this statute, in that the arrest was not personally authorized by the Governor or the Attorney General. We disagree. We note that MCLA 14.35; MSA 3.188 provides that an assistant attorney general may: " * * * appear for the state in any suit or action before any court or administrative body * * * with the same powers and duties and in like cases as the attorney general, but shall at all times be subject to the orders and directions of the attorney general.” We do not believe that the Legislature intended that the Attorney General or the Governor personally authorize each and every arrest made by an officer of the Michigan State Police. Rather, we think the Legislature intended that the Governor and the Attorney General act through duly authorized subordinates. We are cited to no case which expressly construes the provisions of this statute, and we can find none. The Attorney General of the State of Michigan, however, has consistently opined that the Michigan State Police may serve civil process when directed by the Governor or the Attorney General in actions in which the state is a party. See 1 OAG, 1957, No 2,883, p 160 (April 12, 1957) and other opinions cited therein. We agree with the Attorney General. In the case at bar, the arrest was authorized by an Assistant Attorney General and the State of Michigan was a party to the action. We hold that the officers of the Michigan State Police were authorized by MCLA 28.6; MSA 4.436 and MCLA 14.35; MSA 3.188 to arrest the defendant. Defendant’s reliance on the case of United States v Giordano, 416 US 505; 94 S Ct 1820; 40 L Ed 2d 341 (1974), is misplaced. There, the United States Supreme Court in construing 18 USC § 2516(1) held that the statute must be read as limiting the authority to authorize wiretaps to the officials specified in the statutory language, since the statute was intended as a prophylactic device designed to prevent abuses of the wiretap power by insuring that the power would be granted only to a small number of identifiable and politically responsible individuals. Such policy considerations are notably absent from the case at bar, so we find Giordano inapposite. Finally, defendant contends that certain portions of the transcript were withheld from him by the trial judge. This Court has previously ruled on this matter by an order dated November 12, 197,5. Therein we denied defendant’s motion for preemptory reversal, "because the defendant-appellant has failed to specify the portions of the transcript which are allegedly being withheld by the trial judge. This denial is without prejudice to the appellant’s filing in this Court of an appropriate motion specifying those portions of the transcript which he alleges are being withheld.” Since the defendant has not favored us with such a specific motion, we see no reason to disturb that portion of our November 12, 1975, order.. Affirmed.

Per Curiam. We are called upon to decide a single question on appeal: Should a buyer who assumes a mortgage be allowed to assert the illegality of the original mortgage agreement? We answer that question in the negative, and affirm the trial court. Plaintiff brought suit against defendant Loretta Johnson and defendant-appellant Detroit Beverage Corporation, alleging that both parties had defaulted on a mortgage obligation owed to plaintiff. The trial judge granted plaintiff’s motion for summary judgment against Detroit Beverage pursuant to GCR 1963, 117.2(2), for failure to state a valid defense, and that defendant appeals here. On March 5, 1963, Loretta Johnson made and delivered to plaintiff a mortgage on certain property in the City of Detroit as security for repayment of a debt owed to plaintiff. By the terms of the mortgage agreement, sale of the mortgaged property would not affect Loretta Johnson’s liability pursuant to the mortgage or the underlying debt. On May 31, 1967, the property was sold to defendant Detroit Beverage. As part of the transaction, Detroit Beverage expressly agreed to assume and pay the mortgage. Defendant-appellant did in fact pay on the mortgage until February 5, 1973, but made no payments subsequent to that date. Plaintiff brought suit for the entire unpaid indebtedness, claiming that it could invoke an acceleration clause in the mortgage agreement upon default of the defendants. Detroit Beverage admitted that it had assumed the mortgage, but asserted as an affirmative defense the illegality of the original mortgage. Defendant-appellant alleged that the debt and mortgage were void and unenforceable because the underlying consideration given by plaintiff consisted of the granting of credit in the sale of alcoholic beverages, contrary to MCLA 436.16; MSA 18.987. The trial judge did not decide if the transaction was in fact illegal under that statute. Instead, he granted plaintiff’s motion for summary judgment on grounds that Detroit Beverage was estopped from questioning the validity of the mortgage it had assumed. The general rule followed in most jurisdictions is that a grantee who has assumed a specific mortgage cannot avail himself of any defenses the mortgagor may have. See, Osborne, Mortgages (2d ed, 1970), § 267, pp 530-531. The rationale for the rule is that to allow the grantee to assert those defenses would unjustly enrich the grantee by enabling him to get the property for an amount less than he had agreed to in effect pay for it. That reasoning was stated in Crawford v Edwards, 33 Mich 354, 359-360 (1876), as follows: "Here, however, he expressly assumes and agrees to pay the mortgage, and that irrespective of the value of the land covered by the mortgage. The amount of the mortgage is deducted from the consideration which he otherwise has assumed to pay for the land. That amount he has retained in his hands for that express purpose. His grantor, whose duty it was to pay, might have insisted upon payment to him of the entire consideration, and paid it himself. By permitting his grantee to deduct this amount from the consideration and re tain it, he has thereby rendered himself less able to meet the obligation, thereby reducing the mortgagee’s personal security, but has at the same time to a corresponding amount aided the other to meet it. “Why then should not the grantee be held personally responsible to the mortgagee for the amount which he has thus assumed and agreed to pay? It is no injustice to the grantee to require him to pay it, because he has been permitted to deduct and retain that amount from the agreed consideration and value of the land. The consideration he agreed to pay at the time he made the purchase, should be paid by him at the time and in the manner agreed upon, and there is nothing inequitable in requiring him so to do.” Michigan has applied that rule to defenses of lack of capacity to enter into a binding contract, Comstock v Smith, 26 Mich 306, 320 (1873), mutual mistake, Crawford v Edwards, supra, at 363, lack of consideration, Terry v Durand Land Co, 112 Mich 665, 668; 71 NW 525 (1897), and usury, Central Holding Co v Bushman, 238 Mich 261, 266-268; 213 NW 120 (1927). Thus, we are compelled to follow that clear line of authority, and we affirm the decision below. We are not entirely satisfied with the result we must reach, for the original mortgagee receives a windfall instead of the assuming buyer under this rule. That party is able to enforce an obligation which may be contrary to the public policy of this state merely because the party from whom the obligation was extracted has transferred his secured property. In light of the clear precedent cited above, however, any such new rule must be fashioned by our Supreme Court. Affirmed, costs of this appeal to plaintiffi In the affirmative defense, Detroit Beverage also pleaded lack of consideration because the credit sale was actually made to Loretta Johnson’s husband. Appellant therefore argued that the party executing the mortgage had received no consideration for doing so. We need not discuss that issue, however, as it has been abandoned. In its arguments opposing summary judgment and on appeal, Detroit Beverage has raised only the illegality issue and has not pursued the lack of consideration defense. Michigan has also followed the general view that a second mortgagee who takes his mortgage subject to a prior one can set up defenses available to the mortgagor. See, American Trust Co v Michigan Trust Co, 263 Mich 337; 248 NW 829 (1933) (majority concurring in result only), and Osborne, Mortgages (2d ed, 1970), § 267, pp 532-533.

D. E. Holbrook, Jr., J. On February 1, 1974, the defendant entered a plea of nolo contendere to a charge of unarmed robbery, MCLA 750.530; MSA 28.798. He was thereafter sentenced to serve a 5 to 15 year prison sentence and now appeals as of right. On appeal defendant raises three allegations of error, only two of which are of decisional merit. Initially defendant claims that the trial court failed to comply with the provisions of GCR 1963, 785.7(3)(d) insofar as such rule requires the judge to first state reasons for believing that the interests of the defendant and the proper administration of justice do not require interrogation of the defendant regarding his participation of the crime. Here the trial judge stated: "I will not inquire of you as to your participation in this crime and I will do so for the reason that I understand that you are reticent about telling the court exactly what you did do.” In our opinion when one is inclined to be silent or uncommunicative in speech this is sufficient reason for believing that the interests of the defendant and the proper administration of justice do not require interrogation of the defendant regarding his participation in the crime. The only other issue raised by defendant worthy of our discussion is his contention that the trial judge committed reversible error by using improper testimony to establish substantial support for a finding that the defendant was in fact guilty of the offense to which he offered his plea. Here the trial judge conducted a hearing at which time the only witness called was one Marvin Gauthier, a captain of the Marquette Police Department, who related to the court statements made to him by the victim, following his response to a complaint with respect to the instant unarmed robbery. Clearly the testimony of Police Captain Gauthier was hearsay. Defendant, however, did not object thereto. Under such circumstances we hold such hearsay evidence may be considered and given probative effect as if it were in law competent evidence. Hearsay evidence which has been admitted without objection is entitled to consideration by an appellate court in support of the trial court’s findings in a criminal case. See 30 Am Jur 2d, Evidence, § 1103, pp 268-269. Also see Stone v Posen, 310 Mich 712; 17 NW2d 870 (1945). Hence, we hold that unobjected to hearsay testimony is sufficient to establish substantial support for a finding that the defendant is in fact guilty of the charged offense or the offense to which he is offering a plea of nolo contendere. An examination of the record clearly leads us to believe that the defendant’s final allegation of error, that a factual basis for the plea was not established, is without merit. Affirmed. Allen, J., concurs in result only. "Although hearsay evidence may, as a rule, be incompetent and inadmissible to establish a fact, such incompetency and inadmissibility may be waived by failure to object thereto, in which case it is almost uniformly held that it may be considered, if relevant, and may be given probative, or its natural probative, effect, as if it were in law competent evidence. Accordingly, it has been held that hearsay evidence which would be inadmissible if objected to but which is admitted without objection may properly be considered by the trier of facts, and that it should be considered by the trial court in passing upon a motion for a directed verdict, a motion to set aside a verdict for insufficiency of evidence, or a motion for nonsuit. Hearsay evidence which has been admitted without objection has also been held entitled to consideration by an appellate court in support of the trial court’s findings, and in support of a verdict or judgment of conviction in a criminal case.” (Footnotes omitted.)

N. J. Kaufman, J. Defendant was originally charged with felony murder, MCLA 750.316; MSA 28.548. In Detroit Recorder’s Court on March 10, 1975, he proffered a plea of nolo contendere to an added charge of unarmed robbery, MCLA 750.530; MSA 28.798. The trial court took this plea under advisement and, on April 4, 1975, accepted the plea and sentenced defendant to a term of from 2 to 15 years in prison. Defendant now appeals of right and raises two issues for our consideration. Defendant’s first claim of error is that the trial court’s sentence constituted the breach of an agreement among defendant, the prosecutor and the preliminary examination magistrate. Defendant contends that he had entered into an agreement with the prosecutor under which defendant would plead guilty to a reduced charge and would receive probation in return for defendant’s cooperation in the prosecution of the other perpetrators. Defendant claims that this agreement was sanctioned by the preliminary examination magistrate. The magistrate was not the judge who ultimately accepted the plea and set sentence. It is well-established that a defendant is entitled to some form of relief if his plea of guilty was induced by a promise subsequently unfulfilled. In re Valle, 364 Mich 471, 478; 110 NW2d 673 (1961), People v Johnson, 386 Mich 305, 311; 192 NW2d 482 (1971), People v Baker, 46 Mich App 495; 208 NW2d 220 (1973). Such relief generally will take one of two forms: (1) requiring specific performance of the bargain or (2) allowing defendant to withdraw the plea. Santobello v New York, 404 US 257, 267; 92 S Ct 495; 30 L Ed 2d 427 (1971) (Concurrence by Douglas, J.), People v Eck, 39 Mich App 176; 197 NW2d 289 (1972). In general, the choice of remedy is left to the discretion of thé trial court, Guilty Plea Cases, 395 Mich 96, 127; 235 NW2d 132 (1975), but this Court, following Justice Douglas’ concurrence in Santobello, supra, has indicated a desire to accord the defendant’s preference considerable weight, People v Eck, supra at 179, People v Baker, supra at 497. In the instant case, if the facts are as defendant alleges, People v Stevens, 45 Mich App 689; 206 NW2d 757 (1973), would seem to require us to grant defendant specific performance. In Stevens, defendant was present when the trial judge spoke by telephone to his lawyer and to an assistant prosecutor. The judge did not promise, but rather "indicated” an inclination, to give the minimum sentence if defendant pled guilty to the charged offense. The prosecutor apparently acceded. The judge later gave a sentence greater than the minimum. Although the judge had made no actual promise, this Court held that, because a reasonable man could conclude from the judge’s remarks that he would exercise his discretion in accord with his expressed indication, defendant should be granted his requested relief, specific performance of the "bargain”. Therefore, if there was a similar bargain here, it should be enforced. The alleged bargain, however, does not appear on the face of the record. In such cases, this Court has followed one of two courses of action. Where evidence of an alleged bargain is supported only by a defense affidavit and no evidence of a bargain appears on the face of the plea transcript, the plea will be upheld. People v Guerrero, 57 Mich App 316; 225 NW2d 746 (1975). Where some evidence of a bargain appears on the face of the transcript, we have utilized the remedy of People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). See, e.g., People v Rodriguez, 61 Mich App 42; 232 NW2d 293 (1975). Cf. People v Rogers, 55 Mich App 491; 223 NW2d 20 (1974). In the instant case, there is some indication of involvement by the magistrate and of a possible reward by the prosecutor for defendant’s assistance. Pertinent statements are found in a discussion between the trial judge, defendant and defense counsel: "[The Court]: I allowed this plea and took it under advisement in the first instance because the detective in charge, Mr. Gilbert Hill, made a statement on the record, and has talked to me privately and very persuasively in your behalf. "Defendant Christian: Yes, I understand. "The Court: Your counsel has made a number of entreaties on your behalf to me also, and I think to a certain extent he was misled by another Judge, consequently may have misled you because of what he was told, and I realize that he was in some spot in this also. "Now I don’t want you to be misled as to what is going to happen now. I have reviewed this. In light of all the facts and all the circumstances I don’t feel that I can just give you probation. It would be my intention if I accept this plea and if I impose sentence to set your maximum at 15 years, and that is set by the legislature, and your minimum at 2 years and send you to the Michigan Training Unit. "Now I still feel that it is only because a number of people had interceded on your behalf that I could impose that sentence. "But because this is an unusual situation before I accept this plea, before I impose that sentence, I am going to give you an opportunity, if you want, to withdraw the plea, and I will set it for trial. You can take some time to think about that if you want. "Defendant Christian: Can I consult with my attorney? "The Court: Yes. "Mr. Rubach [Defense Counsel]: Your Honor, at the time that we first appeared before Judge Colombo, because of certain — I don’t want to hurt anybody, you understand that — certain representations were made to me, and I don’t even have to mention what, who they were. I waived Examination, and the Judge was a little astounded by this, and that’s how it happened that he made the statement that was made, and he did that in good faith, and I don’t feel that that — that in any way we have been damaged by what he has done. "Very, very recently, before you took this plea of nolo contendere, Your Honor, the prosecution had indicated that if we were not satisfied with the fact he had not had a preliminary Examination, that they would move themselves to have a preliminary Examination.” Based on this evidence alone, notably the apparent involvement of the magistrate and the request for leniency by the police, we would remand for a hearing to determine if the magistrate and prosecutor together offered defendant a bargain. If the magistrate alone promised probation, he would have been acting beyond his authority inasmuch as acceptance of a lesser charge not included in the information is within the prosecutor’s sole discretion. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 684-685; 194 NW2d 693 (1972). Further, a magistrate, who loses jurisdiction upon binding defendant over for trial, cannot alone bind a trial judge who acts pursuant to the mandatory presentence report. Thus, the nature and extent of the prosecutor’s involvement is crucial. Defendant here, however, waived his chance to have a statement by the prosecutor put on the record. After the above discussion, the trial court recessed the proceedings in an attempt to obtain the presence of the assistant prosecuting attorney who had allegedly made the promise. Rather than waiting for him, defendant returned from the recess and chose to accept the sentence rather than withdraw his plea. We read this action as an express choice to waive any attempt to prove a bargain and to accept one of the alternate actions offered by the trial court. We take this opportunity to commend the trial judge for the direct and even-handed way in which he handled this difficult situation. He clearly expressed the reasons for not giving probation and the choices open to defendant. Based on the presentence report, the trial court’s refusal to grant probation was not unreasonable. The choices given to defendant were those provided by law. Defendant was, thus, adequately informed of his alternatives and knowledgeably selected one. Defendant’s second claim of error is that the trial court failed to comply with GCR 1963, 785.7(3)(d) by not stating his reasons for accepting the plea of nolo contendere. Rule 785.7(3)(d) provides in relevant part: "the court may not accept a plea of nolo contendere * * * unless the judge first states reasons for believing that the interests of the defendant and the proper administration of justice do not require interrogation of the defendant regarding his participation in the crime.” In the instant case, the only indication of an attempt to state such reasons was a colloquy between the court and prosecutor: "The Court: All right. And I take it due to the fact situation involved here there is some good reason why the Defendant should be allowed to plead nolo contendere as opposed to a plea of guilty, is that correct? "Mr. Foley: Yes, there is, your Honor. Would the Court want me to make a statement on the record? "The Court: No, as long as there is some good reason that the People are aware of.” This is not sufficient. We accordingly remand this case to the trial court for the judge to supplement the record by stating his reasons for accepting the plea of nolo contendere. Guilty Plea Cases, 395 Mich 96, 134; 235 NW2d 132 (1975). The trial court shall state its reasons for accepting the plea within 30 days of the release of this opinion and shall advise this Court by opinion of those reasons. Pursuant to GCR 1963, 820.1(5), we hold this case in abeyance pending the further actions of the trial court required herein. D. E. Holbrook, Jr., P. J., concurs in result only. "[Defense Counsel]: My client tells me at this time, your Honor, that he would like to have the preliminary Examination, start from the beginning and work through. "The Court: Well, now, who said that they would be agreeable to having him go back for a preliminary Exam? "Mr. Rubach: That would be Mr. Healy. "The Court: Well — "Mr. Rubach: See, we waived it on the bais of certain representations that were made to us, that we, it appeared as though with the cooperation of the defendant, your Honor, that it would work out satisfactory for him, so we waived. "The Court: All right. Well, we will get Mr. Healy down here then. I want him to put that on the record because that is against the Court Rules. "Mr. Rubach: I understand. "The Court: If he wants to make that indication, I will refer it back for Examination also.”

Quinn, J. On leave granted, the people appeal from an order quashing the information in this case. The basis for that order was the finding by the trial court that the search warrant involved was illegally issued by a judge of Detroit Common Pleas Court. Hence, the evidence which supported the charge of unlawful possession of a controlled substance was suppressed. The only issue presented is whether or not a judge of Detroit Common Pleas Court has authority to issue a search warrant for premises within the city of Detroit. MCLA 780.651; MSA 28.1259(1) authorizes magistrates to issue search warrants. MCLA 761.1(f); MSA 28.843(f) defines magistrates and further provides, "Nothing in this definition shall be construed as limiting the power of justices of the supreme court and circuit judges and judges of courts of record having jurisdiction of criminal causes under this act or depriving them of the power to exercise in their discretion the authority of magistrates”. MCLA 728.1; MSA 27.3651 establishes common pleas court as a court of record with criminal jurisdiction, "to the same extent as was had and exercised by the justices of the peace of such city immediately prior to the consolidation of the courts * * * pursuant to the provisions of this act, * * * ”. We conclude that judges of common pleas court have discretion to exercise the authority of magistrates and to issue search warrants unless it can be said that justices of the peace in Detroit had no such authority when common pleas court was established. The trial court held and defendant argues that 1885 PA 161, which established a police court in Detroit, deprived justices of the peace in Detroit of all criminal jurisdiction. By 1919 PA 369 (see MCLA 725.10; MSA 27.3950) the police court was abolished and its jurisdiction was transferred to recorder’s court. Pertinent to decision is the following language from Act 161: "Sec. 10. The police court shall have original and exclusive jurisdiction to hear, try and determine all criminal cases wherein the crime, misdemeanor or offense charged shall have been committed within the corporate limits of the city of Detroit * * * which crime, misdemeanor or offense would be, now or hereafter, cognizable by a justice of the peace if the same had been committed in any other part of this State; * * * .” "Sec. 11. The police court shall have power to issue all lawful writs and process, and to do all lawful acts which may be necessary and proper to execute and carry into complete effect the powers and jurisdiction given by this act, and especially to issue all writs and process, and to do all acts which justices of the peace, within their respective jurisdictions, may issue and do by the laws of this State, and shall, as far as applicable, be governed by the provisions of law regulating criminal cases and proceedings before justices of the peace.” We read that language to grant the police court original and exclusive jurisdiction to hear, try and determine and power (not exclusive) to issue lawful writs and process. It is our conclusion that Act 161 did not deprive justices of the peace in Detroit of authority to issue search warrants. Nor do we find that the "original and exclusive” jurisdiction of recorder’s court, MCLA .726.11; MSA 27.3561, applies to more than "prosecutions and proceedings”, People v Ewald, 302 Mich 31; 4 NW2d 456 (1942). That exclusiveness does not apply to proceedings for the discovery of crime, Ewald, supra, and search warrants are for the discovery of crime. Reversed and information reinstated. R. B. Burns, J., concurred.

Bashara, J. This is an appeal from a judgment of the Oakland County Circuit Court reversing a decision of the Michigan Teachers’ Tenure Commission. The commission had reinstated the previously discharged appellant. Appellant has been a tenured teacher in the appellee school district since 1960. On April 19, 1973, pursuant to the Michigan teacher’s tenure act, MCLA 38.71 et seq.; MSA 15.1971 et seq., the principal at the school where appellant was employed filed charges with the appellee. The charges alleged unsatisfactory performance of professional services by the appellant. The appellee voted to proceed upon the allegations against the appellant. The appellant requested a private hearing before the Royal Oak Board of Education. The hearing commenced on June 5, 1973, and continued periodically with the taking of testimony and exhibits. The board of education concluded the evidence gathering portion of the hearing on August 9, 1973. The board reached a decision on August 22, 1973, to dismiss the appellant. A copy of the decision was timely served upon the appellant. The appellant filed a petition appealing his discharge to the tenure commission assigning as error, (1) the failure of the board of education to render its decision at a publicly noticed meeting, and (2) the dismissal was without reasonable and just cause. The tenure commission ruled the appellant was improperly dismissed because the meeting did not satisfy the public notice requirements. The appellant was reinstated and awarded back pay. The appellee sought appeal to the Oakland County Circuit Court. The trial judge reversed the tenure commission and held that once the appellant elected a private hearing it encompassed the decision. The trial judge then remanded the case to determine whether the dismissal was for reasonable and just cause. The issue presented on appeal is whether a board of education can take official and final action to discharge a teacher at a meeting called without prior notice as required by the public board meetings act, MCLA 15.251 et seq.; MSA 4.1800(1) et seq., where the teacher has previously requested that hearings regarding his discharge be held privately. Boards of education possess only those powers expressly or impliedly granted by statute. Jacox v Board of Education of Van Buren Consolidated School District, 293 Mich 126, 128; 291 NW 247 (1940). The board executes its powers at meetings lawfully called and held unless otherwise authorized by statute. McLaughlin v Board of Education of Fordson School District of City of Dearborn, 255 Mich 667, 670; 239 NW 374 (1931). Generally, all authorized business of boards of education is required to be performed at public meetings. MCLA 340.561; MSA 15.3561. The public board meetings act sets out the notice requirements for public meetings, MCLA 15.253; MSA 4.1800(3), and such requirements apply to boards of education, MCLA 15.251(1); MSA 4.1800(1)(1). The teacher’s tenure act, MCLA 38.71 et seq.; MSA 15.1971 et seq., grants the power to the board of education to conduct hearings on the dismissal or demotion of tenured teachers. MCLA 38.104; MSA 15.2004, provides in relevant part: "The hearing shall be conducted in accordance with the following provisions: "a. The hearing shall be public or private at the option of the teacher affected. * * * "f. Any hearing held for the dismissal or demotion of a teacher, as provided in this act, must be concluded by a decision in writing, within 15 days after the termination of the hearing. A copy of such decision shall be furnished the teacher affected within 5 days after the decision is rendered.” (Emphasis supplied.) The dismissal or demotion may be public or private at the election of the teacher. If the teacher requests a private hearing, the question arises as to whether the decision is part of the private hearing. A statute is open to judicial construction where the language used in the statute is ambiguous or is susceptible to two or more constructions. City of Lansing v Township of Lansing, 356 Mich 641, 649; 97 NW2d 804 (1959). MCLA 38.104; MSA 15.2004, is such a statute. It can be read to mean that the decision is part of the hearing because the hearing must be concluded by a decision in writing. It can also be read to mean that the decision is not part of the hearing, since there must be a decision within 15 days after termination of the hearing. Where the language of a statute is ambiguous or of doubtful meaning, it should be given a reasonable construction looking to the purpose of the statute and the object sought to be accomplished. Smith v Grand Rapids City Commission, 281 Mich 235, 240-241; 274 NW 776 (1937). The Michigan Supreme Court has recognized that the teacher’s tenure act is to be interpreted in favor of the legislative purpose of protecting teachers’ rights. Weckerly v Mona Shores Board of Education, 388 Mich 731, 734; 202 NW2d 777 (1972). We hold that where a teacher elects a private hearing the board of education’s decision to dismiss or demote may be kept private until the teacher has exhausted the appellate processes. Accordingly, we conclude that it was unnecessary for the Royal Oak Board of Education to dismiss the appellant at a public meeting satisfying the notice requirements of the public board meetings act. The specific provisions of MCLA 38.104; MSA 15.2004, permitting the board of education to render a private decision on the dismissal or demotion of a teacher must govern over the general provisions of MCLA 340.561; MSA 15.3561, requiring boards of education to officially act at public meetings. Manistique Area Schools v State Board of Education, 18 Mich App 519, 524; 171 NW2d 568 (1969), lv den 383 Mich 775 (1970). Affirmed, no costs, a public question. Assuming arguendo that compliance with the act was required, the appellant has failed to show any prejudice to his interest. The consequences to him were the same, whether he was dismissed at a publicly noticed meeting or a private meeting. See Saginaw County v State Tax Commission, 54 Mich App 160, 167-168; 220 NW2d 706 (1974), lv granted, 393 Mich 817 (1975), Simon v Gibralter School District, 52 Mich App 643, 646-647; 217 NW2d 891 (1974).

D. E. Holbrook, J. Defendant and two codefendants were charged with one count of armed robbery, MCLA 750.529; MSA 28.797, and one count of breaking and entering, MCLA 750.110; MSA 28.305. However, pursuant to a plea bargain, the defendant and his two codefendants pled guilty to an added count of assault with intent to rob, armed, MCLA 750.89; MSA 28.284. The plea was accepted on February 18, 1975. On March 14, 1975, the defendant was sentenced to serve a term of 5 to 10 years in prison. The defendant appeals as of right contending that his plea-based conviction must be reversed because there allegedly was no factual basis for it. Defendant asserts that assault with intent to rob while being armed is a specific intent crime. The requisite intent is an essential element of the crime and is expressly mentioned in the statutory description of the crime. However, in the present case, the defendant stated that he intended to obtain the return of certain money that he had delivered to the victims earlier in the day of the alleged offense. The money had been used to purchase cocaine from the victims, which defendant claimed was defective. The defendant stated that he was simply trying to get his money back, not steal anything. The plaintiff asserts that the mere indication of a claim of right is not sufficient to negate criminal responsibility. The defendant’s claim of right must be legally recognizable and made in good faith. In the instant case, the defendant’s claim was neither legally tenable nor bona fide. Purchase of a controlled substance like cocaine does not create the usual contract rights that normally arise out of a sales transaction. The law will not recognize the attempt to enforce those rights. One of the codefendants indicated that he had no claim to the money taken from the victims. The other codefendant indicated that they originally went to the place to purchase drugs, but once they arrived they decided to take the drugs and some money. The court rule requires only substantial support for the defendant’s guilt, not conclusive proof of the crime charged. A factual basis for a plea of guilty is required by GCR 1963, 785.7(3), which provides as follows: "(3) Determining Factual Basis for Plea. "(a) The court shall not accept a plea of guilty or nolo contendere until it is satisfied that a crime was committed. "(b) The court shall not accept a plea of guilty until it is satisfied that a crime was committed and, through personal interrogation of the defendant, that defendant participated therein. "(c) If defendant’s description of his actions and any otherwise admissible evidence presented to the court on the record during the plea taking proceedings would not substantially support a finding that defendant is in fact guilty of the charged offense or the offense to which he is pleading, the plea shall be rejected by the court.” An examination of the plea transcript shows a joint arraignment of the three defendants in the instant case, and further indicates that the defendant stated that he went to the place of the alleged crime for the purpose of recovering money that he had paid for some bad drugs. The Michigan Supreme Court recently decided a case which involved a defendant who was charged with armed robbery in a situation similar to . the one in the instant case. In People v Holcomb, 395 Mich 326; 235 NW2d 343 (1975), the defendant testified that he had gone to the victim’s room seeking the return of money that had been paid for bad drugs. The Supreme Court stated, Holcomb, supra, 333; 235 NW2d 343, 346, as follows: "Felonious intent is a requisite element of armed robbery. This Court, in reversing a conviction in People v Henry, 202 Mich 450, 455; 168 NW 534 (1918), said: " 'If the defendant in good faith believed that the money which he demanded was his money, and that he was entitled to its possession, he could not be guilty of either robbery or larceny in taking it, because there would be no felonious intent, "and if the defendant for any reason whatever, indulged no such intent, the crime cannot have been committed.” People v Walker, 38 Mich 156 [1878]; State v Koerner, 8 ND 292; 78 NW 981 [1899].’ "Holcomb testified that he went to Holzapfel’s room 'to ask for [his] money back’, he did not intend to rob Holzapfel. (Emphasis supplied.) "If a jury believes Holcomb, it may not properly convict him of armed robbery.” The test for determining whether there is a factual basis for a plea has been provided by the Michigan Supreme Court in Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132, 145 (1975), which held as follows: "A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference.” In the instant case, the trial judge was justified in accepting the plea of guilty from the defendant. The transcript indicates that the defendant as well as one of the other two codefendants held guns on the victims and demanded money. Further, it. indicates that no one had given permission to take that money from the victims. The acceptance of the plea of guilty by the trial court was proper. Affirmed. D. E. Holbrook, Jr., P. J., concurred.

McGregor, P. J. Saginaw Township instituted proceedings against the defendant for the purpose of condemning 3.47 acres of defendant’s land in order to expand the township’s solid waste disposal facility. At the conclusion of a condemnation hearing in which the defendant appeared in propria persona, the jury entered a verdict approving the condemnation and awarding the defendant $4,000 as compensation. On April 1, 1974, the trial court entered a judgment confirming the jury’s findings. The defendant now appeals as of right from that judgment. Defendant raises several issues for our consideration, only one of which need be discussed, as it requires a reversal in this matter. During his closing argument, plaintiffs attorney made the following statement to the jury: "So, we come down, then, to the question of value, and I guess because I pay a lot of taxes, myself, I get a little resentful at being held up and that’s how I feel in this case. We are looking to you to not let this happen. We are only asking that you give him a fair value, giving him even the benefit of the doubt and that is $4,000.” This argument is improper for two reasons. First, as a general rule, it is improper to argue to a condemnation jury that they, as taxpayers, will ultimately bear the cost of whatever compensation damages they award. See Propriety and Effect, in Eminent Domain Proceedings, of Argument or Evidence as to Source of Funds to Pay for Property, 19 ALR3d 694. Secondly, the statement strongly implies that the defendant was attempting to "hold up” the taxpayers by seeking an inordinate sum for his property and that, as a result, the jurors, as taxpayers, should feel resentful toward the defendant. We find this statement to be improper and, coming from an attorney representing the public interest, inexcusable. Having found these remarks to be improper, we are now presented with the issue of whether, under the circumstances of this case, they are sufficiently prejudicial to require the granting of a new trial. Where, as here, the remarks are deliberately injected into the proceedings and constitute an inflammatory plea to the jurors’ passions, even though not objected to by the defendant acting in pro per, under all of such circumstances, we hold them to be sufficiently prejudicial.- In reaching this result, we are guided by the language of In re Widening Woodward Ave, 297 Mich 235, 245-246; 297 NW 468 (1941): " 'The general principle underlying all these cases is that the parties are entitled to a fair trial on the merits of the case, uninfluenced by appeals to passion or prejudice.’ * * * "It is a general principle that remarks calculated to prejudice a jury are improper * * * . "It is the duty of lawyers to try their lawsuit to the end that justice may prevail. In our opinion, the remarks of counsel were of such a nature as to deflect the attention of the jury from the issues involved and had a controlling influence on its verdict. "While it is regrettable that this case must be sent back for retrial, with the costs and expenses incident thereto, it is of more importance that a cause be properly tried and that a verdict reflect and evaluate the rights of the interested parties.” Although in a normal case we might make a finding of harmless error as to the improper remarks made by plaintiff’s attorney during his closing argument, the deliberate and calculating manner in which these comments were made and the fact that defendant, proceeding as his own attorney, was completely mismatched against plaintiff’s experienced counsel, requires us to find reversible error. Judgment reversed and a new trial granted. Costs to defendant-appellant. D. E. Holbrook, Jr., J., concurred.

Per Curiam. The origin of this suit stems from a vacancy on the Schoolcraft Memorial Hospital Board of Trustees [hereinafter defendant] created by the resignation of the hospital’s chief executive and board member. Plaintiff, Schoolcraft County Board of Commissioners, sought to appoint one of its members to the defendant board. Defendant insisted that plaintiff should appoint to the hospital board the new chief executive of the hospital. Plaintiff brought this declaratory judgment action to resolve the dispute. The lower court ruled that although plaintiff could not appoint one of its own members to the defendant board, it was not required by statute to appoint the new chief executive. This appeal followed. The issue is whether statutory law required continuous appointment of the chief executive officer of a county hospital to the hospital board of trustees. The involved statute provides: "If a majority of all the votes cast upon the question are in favor of establishing a county public hospital, the board of commissioners shall proceed at once to appoint 9 trustees chosen from the citizens at large of the county with reference to their fitness to such office, 1 of whom shall be the chief executive officer of the hospital and not more than 3 of whom may be licensed physicians, who shall constitute a board of trustees for the public hospital. The trustees shall hold their offices until the end of the next following calendar year. In September, prior to the expiration of their terms of office, the board of trustees shall submit to the board of commissioners the names of not more than 2 qualified candidates for each appointment or reappointment. The board of commissioners, at its October meeting, shall appoint for terms commencing next January 1, 3 trustees for 2 years, 3 trustees for 4 years and 3 trustees for 6 years. As terms expire thereafter appointments shall be made for 6 years in the same manner. Appointments to unexpired terms shall be made in the same manner. All appointments and reappointments shall meet general eligibility qualifications hereinbefore stated.” MCLA 331.153; MSA 14.1133. Plaintiff and the lower court take the position that the statute requires a county board of commissioners to appoint the chief executive officer of a county hospital to the initial hospital board of trustees but does not dictate that the board of commissioners appoint the chief executive to any subsequent board of trustees. Defendant asserts that the statute makes no such distinction between the initial and subsequent boards, and that the history and language of the statute manifest a legislative intent that the chief executive must be appointed to any and all boards. Each respective position of the litigants is not without some foundation and it is the Court’s function to determine what the Legislature truly intended. Aikens v Department of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972), Kizer v Livingston County Board of Commissioners, 38 Mich App 239; 195 NW2d 884 (1972). As stated by our Supreme Court in In re School District No. 6, Paris and Wyoming Townships, Kent County, 284 Mich 132, 143-144; 278 NW 792 (1938): "That intention is to be drawn from an examination of the language of the act itself, the subject matter under consideration, and the scope and purpose of the act. It is necessary to consider other statutes which may have preceded it or which relate to the same subject. The act should be so construed that all of its provisions may be rendered harmonious and recourse may be had to the history of the legislation upon the subject matter of the act.” The statute places authority with the county board of commissioners to appoint and reappoint members to a county hospital board of trustees. However, it is evident that the statute places certain limits on the board of commissioners respecting the initial selection of members to a county hospital board. First, all members must be citizens of the involved county. Secondly, all must be fit to hold office. Thirdly, no more than three members may be licensed physicians. Finally, one member "shall be the chief executive officer of the hospital * * * ”. The issue thus becomes whether the Legislature intended that these requirements should apply to subsequent boards of trustees. We conclude that it did. It is true that the above requirements are not expressly repeated in other parts of the statute, particularly the part relating to subsequent appointments. However, the last sentence of the subject provision reads that "all appointments and reappointments shall meet gen eral eligibility qualifications hereinbefore stated * ** * ”. This Court believes that when the Legislature referred to "general eligibility qualifications hereinbefore stated” it was speaking of the requirements set forth in the first sentence of the statute. In other words, the county board of commissioners may not appoint an individual to any board who is not a citizen of the involved county. Nor may the commissioners appoint more than three licensed physicians to any board. By the same token, the commissioners must appoint the present chief executive officer to fill the vacancy created by the resignation of the former chief executive officer. This view is further supported by the history of this legislation. From its original enactment in 1913 until amended in 1971, the instant law contained a clause which expressly prohibited practicing physicians from being elected to the board of trustees of a county hospital. We find it inconceivable that the Legislature intended to permit the county board of commissioners to appoint an unlimited number of physicians to any board other than the initial board, after having explicitly barred physicians from membership for such an extended period of time. Clearly, the Legislature intended that the maximum of three physicians should apply to any board, be it the first or subsequent boards. It follows that the provision for mandatory inclusion of the chief executive officer on the first board, found in the same sentence which limits member physicians, applies to all boards as well. The trial court erred in ruling that plaintiff is not required to appoint the present chief executive officer of the School-craft Memorial Hospital to the board of trustees. However, as noted earlier, the trial court was correct in determining that the vacant position could not be filled by a member of the County Board of Commissioners. Affirmed in part, reversed in part. No costs, neither party having prevailed in full and a public question being involved. Plaintiff effectively concedes, and the Court agrees, that the lower court correctly determined that a member of the county board of commissioners may not simultaneously be a member of the county hospital board of trustees. MCLA 46.30a; MSA 5.353(1), MCLA 331.154; MSA 14.1134. We agree with plaintiff that punctuation can be significant in ascertaining the meaning of a statute, but find such not to be controlling in the case. Nor do we perceive any policy considerations being jeopardized by our decision. 1913 PA 350. 1971 PA 167.

Allen, J. A jury convicted defendant, a prison inmate, of unauthorized possession of an implement by a convict which may be used to injure another. MCLA 800.283; MSA 28.1623. He appeals raising three assignments of error, one of which merits discussion. Defendant asserts he was convicted under an unconstitutionally vague law. The people unsurprisingly maintain a contrary view. That part of the statute under attack reads: "A convict without authorization, shall not have on his person or under his control or in his possession any weapon or other implement which may be used to injure any convict or other person, or to assist any convict to escape from imprisonment.” MCLA 800.283; MSA 28.1623. The standard for ascertaining whether a criminal statute is void for vagueness is not in dispute: "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Lanzetta v New Jersey, 306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939). Also see Suits v Meridian Twp, 60 Mich App 347; 230 NW2d 426 (1975), Kalita v Detroit, 57 Mich App 696; 226 NW2d 699 (1975). The Court does not view the provision as so vague that men of ordinary intelligence must guess at its meaning and application. Clearly, the statute was intended to prohibit possession of weapons or objects similar to weapons which might be used to harm others or make an escape. Moreover, the section challenged applies only to prison inmates and only to unauthorized possession or control. Defendant submits that under the language of the statute a prisoner could be subject to criminal responsibility for possessing items such as a pencil, ball point pen, shoestrings, and religious paraphernalia. The Court is unimpressed. The provision in question will not be struck down by this Court simply because the Legislature failed to list each and every "implement” imaginable. United States v Petrillo, 332 US 1; 67 S Ct 1538; 91 L Ed 1877 (1947). We must use some common sense in our construction, and requiring the Legislature to specify every type of implement proscribed would make little sense. Further, we believe a prisoner would have implicit authority, unless expressly forbidden, to have shoestrings in his or her shoes or to possess a pen for writing. Be that as it may, instant defendant was not convicted for possessing a pencil or shoestring. The record reveals that prison authorities found a draftsman’s compass on defendant’s person during a routine shakedown made prior to the prisoners’ daily yard time. The compass was bent, was sharpended on one end, and was unfit for normal use. In short, it was an object of weapon-like qualities that could be used to harm others. The statute, being constitutional on its face and as applied to defendant, may not be attacked on the basis of a hypothetical situation: " * * * one to whom application of a statute is constitutional will not be heard to attack the statute on the grounds that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” United States v Raines, 362 US 17, 21; 80 S Ct 519; 4 L Ed 2d 524 (1960). It is noteworthy that defendant has not attacked the subject statute on the basis that it violates the title-object clause of art IV, § 24 of the Michigan Constitution, 1963. That question is currently before another panel of the Court. See People v Stanton, 69 Mich App 495; — NW 2d — (1976). Affirmed. Defendant objected to the shakedown.

Per Curiam. Plaintiff, Debra Wynglass, appeals the grant of defendant’s motion for summary judgment, GCR 1963, 117.2(3), by the Wayne County Circuit Court. The issue in dispute involves a policy of insurance under which Raynel Wynglass was the named insured and Debra Wynglass was the named beneficiary. On Raynel’s death, defendant paid the face value of the policy. Plaintiff Debra brought this action to collect the additional "accidental death” benefits under the insurance policy. A deposition by Debra Wynglass was the only evidence before the trial court at the time it considered the motion for summary judgment. The deposition reveals that Debra shot and killed Raynel in attempting to fend off one of his numerous assaults on her. She had lived with Raynel, who stood six feet tall and weighed about 280 pounds, for three and one-half years. On the night of March 19, 1974, she arrived home from work about 5:30 p.m. Raynel accused her of having an affair with another man. She went into the bedroom and Raynel struck her with his fist while yelling at her. After leaving the bedroom, she went to the kitchen and grabbed a paring knife. Raynel saw the knife, they struggled. He broke her knife. Raynel grabbed a long bread knife and began "cutting” her. After receiving many cuts, she broke away and ran to the bedroom. After knocking her down and kicking her, he went into the bathroom. Debra then ran into the bedroom and grabbed a pistol which had, on a prior occasion, been left in the house by a third party. Both Debra and Raynel were aware of the gun. She ran into the hallway in order to leave, but Raynel was there. He grabbed her purse and threw it, and began knocking her up against the wall. He had the knife, and she had the gun. As Raynel approached her, she said something to the effect of "don’t come any closer or I will shoot”. She was pointing the gun at him, and he saw it. Debra stated that because he kept coming toward her she shot him. She testified that Raynel had assaulted her many times before, but never with a weapon. She had never resisted before. Debra stated that she was afraid that he would kill her, and that he had never made such a threat before. The case was ruled "justifiable homicide” by the police. For a summary judgment granted under GCR 1963, 117.2(3) to be upheld on appeal, it must be clear that, giving the opposing party the benefit of every reasonable doubt, there is no genuine issue as to any material fact. George E Snyder Associates, Inc v The Midwest Bank, 56 Mich App 193; 223 NW2d 632 (1974), lv den, 393 Mich 769 (1974). The court here, therefore, held that the death of the insured was not, as a matter of law, accidental. In determining whether a death is accidental, a court must view the death through the eyes of the deceased and must ascertain whether his death was a foreseeable occurence. State Farm Mutual Automobile Insurance Co v Coon, 46 Mich App 503; 208 NW2d 532 (1973). Plaintiff argues that the instant facts made the question of foreseeability one for jury determination. In a similar case, the Supreme Court has held that, for a death to be considered accidental, the court must find that: "(1) it was not done in self-defense, (2) that it was not culpably provoked by insured nor the result of his misconduct”. Reed v Mutual Benefit Health and Accident Association, 345 Mich 586, 591; 76 NW2d 869 (1956). Based on the Reed test and on Peterson v Aetna Life Insurance Co, 292 Mich 531; 290 NW 896 (1940), we hold that the trial court was correct in finding that, as a matter of law, the insured’s death was not accidental. Plaintiff in Peterson was assignee of the named beneficiary of a policy insuring the life of one Floyd Peterson. Peterson was dating a Mrs. Gee. One day he came to the Gee household in a drunk and belligerent mood. He began yelling at Mrs. Gee, pulled a gun and threatened to kill her and her family. Peterson forced her to sit in a chair while he trained the gun on her. According to Mrs. Gee, he raised the gun and took aim at her. At this time her son, Foster, who was aware of the situation, entered the room, and shot Peterson dead. The Court upheld the trial court’s holding of no cause of action. The Court held that one assaulting another with a dangerous weapon should reasonably expect the victim or a third party to resist. As such, if the aggressor is killed, it is a natural and logical sequence of his own voluntary act. Specifically, the Court stated: "In the instant case, Peterson threatened to kill Mrs. Gee and her family. He held a gun in his hand, pointed at her, and shouted his threats loud enough to be heard in the street. Peterson must be held, as a matter of law, to have expected someone to come to the rescue of Mrs. Gee and to protect her life to the extent of taking his if necessary.” 292 Mich at 536. (Emphasis supplied.) The instant case is even stronger than Peterson. In both, the insured was the aggressor. In both, the insured provoked actions resulting in his death. In the instant case, unlike Peterson, the decedent saw the gun and was warned by plaintiff that she would use it. As such, the death of the insured was, as a matter of law, foreseeable by him and, therefore, not accidental. Affirmed. Costs to defendant. This suit was originally brought by Sherry Lynn Wynglass against the insurance company and Debra Wynglass. Debra then filed a cross-claim against Prudential Life. By stipulation, the original plaintiff was dismissed from the litigation. For convenience, we deem Debra Wynglass as plaintiff and Prudential Life as defendant.

Bronson, J. Prior to March 15, 1969, plaintiffs each filed with defendant their Michigan income tax returns for 1968 showing various tax liabilities, which were all paid by plaintiffs. In 1971, each plaintiff filed an amended return claiming refunds in various amounts for 1968, resulting from the carry-back of net operating losses sustained by each for its 1969 fiscal year. For purposes of their Federal income tax returns, each plaintiff had carried back the 1969 loss to offset income for the years 1966 and 1967, which "used up” all of that loss. Defendant disallowed the claims for refund on grounds that the plaintiffs were required to carry back losses to the same years they did so for Federal income tax purposes — 1966 and 1967. The Department of the Treasury therefore contended that all loss carry-back had been "used up” prior to 1968 for Michigan income tax purposes as well. On August 15, 1973, each plaintiff filed a complaint for refund of taxes in Ingham County Circuit Court pursuant to § 421 of the Michigan Income Tax Act, MCLA 206.421; MSA 7.557(1421). The cases were consolidated on July 23, 1974. Plaintiffs filed a motion for summary judgment pursuant to GCR 1963, 117.2(3), which the trial court granted on grounds that the case could be resolved entirely on the basis of statutory construction. The Department of the Treasury appeals here. The Michigan Income Tax Act of 1967, 1967 PA 281; MCLA 206.1 et seq.; MSA 7.557(101) et seq., imposed for the first time an income tax on corporations. Effective January 1, 1968, § 61 of the act imposed a tax rate of 5.6% on the "taxable income” of a corporation. "Taxable income” was defined in § 32 as the "net profits” of the corporation, subject to certain adjustments, including interest from government bonds not taxed under the Federal income tax system. The term "net profits” was defined in § 12(3) as follows: "(3) 'Net profits’ means the net gain from the operation of a business, profession or enterprise, after provision for all costs and expenses incurred in the conduct thereof, determined on either a cash or accrual method, on the same basis as provided for in the internal revenue code for federal income tax purposes, but without deduction of any taxes imposed on or measured by income including taxes imposed by this act and without deduction of net operating loss carry-over or capital loss carry-over sustained prior to January 1, 1968. ” (Emphasis added.) No other reference or definition of "net operating loss carry-over” was written into the statute. We must first determine whether the Legislature intended to include net operating loss deductions beyond "net operating loss carry-over * * * sustained prior to January 1, 1968”. No express language of the act provides for such, but a longstanding doctrine of statutory construction is that expressio unius est exclusio alterius. The expression of one thing is the exclusion of another. Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953), Valenti Homes, Inc v Sterling Heights, 61 Mich App 537, 540; 233 NW2d 75 (1975). Therefore, if a net operating loss deduction is allowed in general, only the specifically mentioned carry-overs are to be disallowed as deductions under the act. As indicated from the language of § 12(3), quoted above, provision for "all costs and expenses incurred in the conduct” of a business is to be made when computing the "net gain” of a business. The scope of the terms "costs” and "expenses” is not explained, but the Legislature did not leave us without guidance. Section 2 of the act provides rules of construction: "Sec. 2. (1) For the purposes of this act, the words, terms and phrases set forth in this chapter and their derivations have the meaning given therein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and in the singular number include the plural. 'Shall’ is always mandatory and 'may’ is always discretionary. "(2) Any term used in this act shall have the same meaning as when used in comparable context in the laws of the United States relating to federal income taxes unless a different meaning is clearly required. Any reference in this act to the internal revenue code shall include other provisions of the laws of the United States relating to federal income taxes. "(3) It is the intention of this act that the income subject to tax be the same as taxable income as defined and applicable to the subject taxpayer in the internal revenue code, except as otherwise provided in this act.” It is clear that as a general rule the United States Internal Revenue Code of 1954 is to be used as an interpretive tool. Section 2(2) does not help us much here, for the terms used in the Michigan act are different than those used in the Internal Revenue Code. In the Federal code, "taxable income” is defined in § 63 as "gross income” for the taxable year minus those "deductions” allowed for corporations (found in §§ 161 through 188). Included as deductions are such items as ordinary trade and business expenses (§ 162), interest payments (§ 163), various state and local taxes, including income taxes (§ 164), bad debts (§ 166), and depreciation (§ 167). An additional deduction, of primary concern here, is found in § 172, and is labeled the "net operating loss deduction”. At no point in the Code are the terms "net profits”, "net gain” or "cost and expenses incurred in the conduct of a business” given special meaning. Although § 2(2) gives us little guidance, we find §2(3) to be dispositive of this issue. That latter section indicates that the Michigan act should in general be construed so as to make Michigan "taxable income” the same as the "taxable in come” under the Internal Revenue Code. Viewing § 12(3) in that light, we must conclude that "net profits” were intended to be equal to "gross income” minus various "deductions” as utilized by the Federal code. The term "expenses and costs” must therefore be read as being coextensive with the term "deductions” found in the Internal Revenue Code. Our interpretation of the term "expenses and costs” is consistent with the subsequent qualifying language found in section 12(3). Significantly, the Legislature disallowed the "deduction” of certain items, language paralleling that of the Internal Revenue Code. Further, the items not allowed fall within various of the deductions found in §§ 161 through 188 of the Federal code. Income taxes, allowed under § 164, cannot be deducted. Net capital loss carry-over sustained prior to 1968 and net operating loss carry-over sustained prior to 1968 cannot be deducted. Those items are included within the Federal provision found in §§ 165 and 172, respectively. Those express limitations cutting away from the scope of the deductions allowed under §§ 161 through 188 of the Internal Revenue Code further support the view that those deductions apply in all other cases. It is worth noting that a minor modification of § 12 in 1969 brought this section closer to the language found in the Internal Revenue Code. 1969 PA 332, effective for all returns for the 1969 calendar year, inserted the phrase "gross income of a business * * * less all costs and expenses incurred in the conduct thereof’ in place of "net gain from the operation of a business * * * after provision for all costs and expenses incurred in the conduct thereof’. We think that such a revision clearly showed an intent on the part of the Legis lature to use language more consistent with that used in the Internal Revenue Code. We have determined that a "net operating loss deduction” was put into effect for corporate taxpayers by the Michigan Income Tax Act of 1967, supra, but we must now decide how that deduction is to be specifically applied for Michigan income tax purposes. Since the statute in effect at the time plaintiff sustained their net operating loss did not define this deduction, we must look to § 172 of the Internal Revenue Code. A "net operating loss deduction” has been in effect in one form or another for Federal income tax purposes since 1939. The general purpose of this type of provision was discussed by the United States Supreme Court in Libson Shops, Inc v Koehler, 353 US 382, 386; 77 S Ct 990, 993; 1 L Ed 2d 924 (1957): "The requirement of a continuity of business enterprise as applied to this case is in accord with the legislative history of the carry-over and carry-back provisions. Those provisions were enacted to ameliorate the unduly drastic consequences of taxing income strictly on an annual basis. They were designed to permit a taxpayer to set off its lean years against its lush years, and to strike something like an average taxable income computed over a period longer than one year.” The "averaging” purpose of this deduction is consistent with our Legislature’s decision not to allow carry-over of pre-1968 losses, for there was simply no prior tax liability to spread evenly over a period of years. The present Federal § 172 embodies the "averag ing” concept. Subject to limitations not applicable here, a corporation sustaining a "net operating loss” — i.e., a corporation whose deductions for a particular "taxable year” exceed its gross income —may carry its losses back three years and carry any unused loss forward for five years. The loss must first be carried back to the earliest of the "taxable years” to which the loss can be carried. Any portion of the loss which is remaining (after setting it off against the taxable income from the year to which it is carried) is then applied to successively later "taxable years” until it is used up. An example will clarify the operation of § 172. Suppose a corporation has a net operating loss of $100,000 in 1975, and had taxable incomes, on which it paid the appropriate tax, of $40,000 in 1972, $40,000 in 1973, and $40,000 in 1974. Amended returns can be filed declaring taxable income of $0 in 1972, $0 in 1973, and $20,000 in 1974. The loss was "used up” in 1974 in this example. However, if the loss in 1975 had been large enough, the corporation could have "net operating loss carryovers” for the years 1976, 1977, 1978,1979, and 1980, in that order. Neither party has any problem with plaintiffs’ actions with respect to their Federal income tax returns. Plaintiffs took "net operating loss carry-backs” for 1966 and 1967 with respect to their original 1969 loss according to the rules stated above, and "used up” their "net operating loss”. The dispute centers around the method to be used for Michigan income tax purposes. Plaintiffs argue that § 172 indicates that "net operating” losses are to be first carried back to the earliest allowable "taxable year”, and that "taxable year” refers only to time periods when an income tax was actually in effect in Michigan. Consequently, plaintiffs claim that they can first carry back their 1969 loss to 1968, the first year of the Michigan corporate income tax. We cannot agree. Plaintiffs’ argument is certainly not lacking in logical appeal, but we are not to decide this issue in a vacuum. In §2(3) of the Michigan act, the Legislature expressly set up a frame of reference for deciding issues of legislative intent. Specifically, that section states that "the income subject to tax [is intended to] be the same as taxable income as defined * * * in the internal revenue code”. (Emphasis added.) We view that section as evidence of an intent to equate the dollar amount of the taxable income for state income tax purposes with the dollar amount of the taxable income for Federal income tax purposes. In addition, we think that it is in keeping with § 2(2) to view the term "taxable income” as a reference to those years in which a Federal income tax is in existence. Therefore, we hold that the plaintiffs were properly required to carry back their "net operating loss” for 1969 to the same years as in their Federal income tax returns. We further hold that the calculation method discussed above does not violate the principles of equal protection. Reversed and remanded. No costs, a public question being involved. Int Rev Code of 1954, § 1 et seq.; 26 USCA 1 et seq. (hereinafter referred to as the Internal Revenue Code). 1970 PA 140 revised the statute by incorporating § 12(3) into § 32, and providing a specific definition of "net operating loss deduction”.

Bashara, J. Defendant appeals from a bench trial and conviction of receiving and concealing stolen property over the value of $100, contrary to MCLA 750.535; MSA 28.803. At trial Detroit police officer Henry testified that he stopped a 1972 Thunderbird automobile at 4 a.m. for speeding. When defendant could not produce a registration, the officer noticed that although the car motor was running there were no keys in the ignition. A passenger, one Tony Washington, was ordered to exit from the automobile and further investigation revealed that the glove box had been forced open. Defendant could not produce the ignition key upon request, although he stated that he had the key. Testimony was adduced from the owner of the automobile that it had been stolen shortly before defendant was apprehended. It was further shown the ignition key was in the possession of the owner. Defendant testified that Tony Washington picked him up at his house at 3 a.m. The defendant claimed that he did not initially notice that the ignition key was missing because the engine was running and Washington was driving. Within one block Washington requested the defendant to drive. Places were exchanged while the engine remained on. The defendant stated that he still had not noticed the lack of an ignition key. Defendant explained that he only realized that the car was stolen just prior to being stopped by the police. The first issue raised on appeal is that there was insufficient evidence to sustain the trial court’s finding of defendant’s guilt. Defendant particularly claims lack of evidence showing guilty knowledge. However, guilty knowledge may be inferred from facts and circumstances brought out at trial. People v Blackwell, 61 Mich App 236; 232 NW2d 368 (1975). Defendant’s possession of recently stolen goods, coupled with the damaged ignition and his false statement that he had the key are sufficient to find guilty knowledge. People v Tantenella, 212 Mich 614; 180 NW 474 (1920), People v White, 22 Mich App 65; 176 NW2d 723 (1970). Defendant also contends that reversible error resulted from the trial court’s failure to require production of indorsed witness Tony Washington. We need not dwell on this issue since People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), precludes appellate review unless a motion for new trial raising the question is made in the trial court. It is true that a delayed motion for new trial was made and denied in the trial court. However, the sole issue raised there was the sufficiency of the evidence. We find this contention to be without merit. Affirmed. M. F. Cavanagh, J. I agree with Judge Bashara that the conviction should be affirmed and that a retrial is not necessary. But I do not agree that the issue of the prosecutor’s failure to produce an indorsed witness was not preserved for appeal. When defendant objects at trial and a hearing is had on the. issue of due diligence or cumulativeness, the requirements of Robinson are met. People v Jones, 65 Mich App 619; 237 NW2d 584 (1975). However, remand is not necessary. The record supports the conclusion that the trial court ruled in defendant’s favor on the due diligence issue and drew the inference that the witness’s testimony would have been unfavorable to the prosecutor’s case. See People v Barker, 18 Mich App 544; 171 NW2d 574 (1969). Bronson, P. J. I cannot agree with the majority’s conclusion that the issue of the prosecutor’s failure to produce the indorsed witness, Tony Washington, was not preserved for appeal. When defendant objects at trial and evidence is taken, the Robinson requirements are met. People v Jones, 65 Mich App 619; 237 NW2d 584 (1975). Those circumstances were present here, and there was no need for defendant to make an additional motion for a new trial. . We need not decide whether Tony Washington was in fact a res gestae witness. The prosecutor’s voluntary indorsement of Tony Washington carries with it the attendant burden of exercising due diligence in obtaining the presence of that witness at trial, People v Mitchell, 48 Mich App 361; 210 NW2d 509 (1973). The record here indicates that the prosecutor did not sustain that burden. The police served a subpoena upon Washington’s mother, but admitted that such service was probably ineffective. The only other effort made to locate the witness was to send a scout car to his house the day of trial. This Court has found efforts substantially similar to those to be insufficient. See People v Eugene Harris, 43 Mich App 531, 536-538; 204 NW2d 549 (1972). Although a lack of due diligence has been found, no reversible error results if the testimony of the missing witness would be merely cumulative, Peo ple v Kimble, 60 Mich App 690, 696; 233 NW2d 26 (1975). There is certainly nothing on the record to indicate that Washington’s testimony could be classified as such. Although Tony Washington could not directly testify as to defendant’s knowledge that the car was stolen, he could certainly have observed actions consistent with lack of knowledge. He was also the only person who could verify defendant’s story as to why he was driving the stolen automobile. However, to avoid the possibility of a useless retrial, I vote to follow the remand remedy set forth in People v James, 51 Mich App 777, 784-785; 216 NW2d 473 (1974), to more fully explore the cumulativeness issue.

R. B. Burns, J. Plaintiff appeals from an adverse decision of the Workmen’s Compensation Appeal Board reversing its hearing referee and denying dependency benefits. Plaintiffs left hand was amputated as the result of a die press accident while he was working for defendant. At the time of the accident, plaintiff had been living apart from his wife for two or three years. Plaintiffs uncontroverted testimony was that this separation was amicable and motivated by economic considerations; specifically, that he absented himself from the home in order to enable his family to establish eligibility for public assistance. He testified that he regularly visited his family and that he gave his wife whatever money he could manage from his sporadic employment throughout the period of separation. We granted leave in part to consider a discrepancy between two sections of the Workmen’s Com pensation Act, and invited the parties to brief the following question: "Does the provision in the Workmen’s Compensation Act, extending the conclusive presumption of dependency upon a deceased employee to a wife who 'was living apart [from her husband] for justifiable cause or because he had deserted her’, MCLA 418.331; MSA 17.237(331), whereas no similar provision is made for the wife of an injured workman, MCLA 418.353; MSA 17.237(353), deny plaintiff the equal protection of the laws?” The "injured workman” statute, MCLA 418.353; MSA 17.237(353), only grants the conclusive presumption of dependency if the wife is "living with” the workman as of the date of injury; the "living apart for justifiable cause” provision is not contained in this section of the statute. The statute further provides, however, that a wife (and children) not living with the injured workman may, although not afforded the presumption, still establish dependency "in fact” providing that she receives more than one half of her support from the workman. The referee’s decision essentially found that plaintiff and his wife were still living together, albeit separately, within the meaning of the statute, and he applied the conclusive presumption. The appeal board, by a 3-2 majority, reversed this finding of "living with” and indicated that plaintiff could petition again if he wished to attempt to show dependency in fact. We first consider whether the statutory classification reserving the conclusive presumption to widows represents a denial of equal protection to the similarly situated wives of injured workmen. As neither a "suspect classification” nor a "funda mental interest” is involved necessitating ’ a "strict scrutiny” standard of judicial review, we evaluate this statutory discrimination by the "traditional” or "rational basis” test of equal protection. As stated in People v Harper, 1 Mich App 480, 483; 136 NW2d 768, 769 (1965), quoting from Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510, 514; 104 NW2d 182, 184 (1960): " ' "The standards of classification are: " ' " '1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not oifend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.’ Citing cases.” ’ ” We believe that the following basis "reasonably may be conceived to justify” this classification: The public policy requires (or permits) that, especially in the area of protective legislation, the state maintain an attitude of solicitude toward widows. Additionally, it must be realized that providing the "justifiable cause” presumption for widows does not effect any variation in the respective rights of the widows and wives. The right in both instances is the same: Recovery of dependency benefits. The conclusive presumption is merely an accommodation in proof, and an apparent and reasonable evidentiary basis for this accommodation can be readily surmised. That is: As the widow is the only source of competent, non-hearsay testimony as to the issue of justifiable cause for living apart, no purpose will be served by denying the presumption; conversely, where the disabled employee is also available to provide such evidence, the presumption should not be automatically granted. We do not find the varying availability of the conclusive presumption in MCLA 418.331; MSA 17.237(331) and MCLA 418.353; MSA 17.237(353) to be unreasonable and a violation of equal protection of the laws. We next consider the appeal board’s holding that plaintiff was not "living with” his wife and children within the meaning of the statute. We are aware of the generally accepted legal fiction recited in 2 Larson’s Workmen’s Compensation Law, § 62.40, pp 11-48, 11-50. "The phrase 'living with’ has usually been given a constructive meaning going well beyond physical presence under the same roof. * * * Separation for economic reasons, because of the husband’s inability to provide adequate residence and support, is not voluntarily living apart.” Nevertheless, this principle is clearly inconsistent with the specific language of Michigan’s law. Again, MCLA 418.331; MSA 17.237(331) provides the presumption for widows "living with” or "liv ing apart for justifiable cause”, while MCLA 418.353; MSA 17.237(353) simply states "living with”. The legal maxim that the inclusion of one is the exclusion of another leads to the obvious conclusion that the Legislature’s intent was not to indulge the fiction that "living with” could include "living apart”. We must conclude that the Legislature varied these sections intentionally. Holden v Gifford Lumber Co, 231 Mich 532; 204 NW 689 (1925), emphasized by the hearing referee, is a death benefits case, and inapposite. The appeal board’s decision that the conclusive presumption does not apply in this case is affirmed. The case is remanded to the appeal board to enable plaintiff an opportunity to present proofs as to dependency in fact. As recited in Anderson v Detroit, 54 Mich App 496, 499; 221, NW2d 168 (1974) (fn 1): "Suspect classifications are those based upon race, alienage, national origin, and sex. Fundamental interests include the right to vote and travel, privacy, due process in criminal matters, and Specific guarantees in the Bill of Rights.” (Citations omitted.)

N. J. Kaufman, J. Defendants appeal a judgment entered against them by the Court of Claims. This is one of those troublesome cases, so conducive to making bad law. It involves the tragic deaths of three individuals for whose survivors the law of governmental immunity must deny legal recourse. Our sympathies naturally run to the plaintiffs. The law, unfortunately, does not. In 1966, the Michigan State Highway Department purchased two tracts of land in Arenac County. From this land, the department removed dirt to be used in the nearby construction of 1-75. The excavation resulted in a borrow pit which, having been dug below the water table, soon filled with water. A pond, about 1000 feet long and about 500 feet wide, was formed. On December 10, 1969, two young boys, Harley Fouchia, age 12, and Lee Steve Gerzeski, age 10, drowned in this pond, which was then covered with ice. The boys had walked across the pond and had fallen through the ice near the place where the pond drained. When Harley’s mother noticed that the boys were missing, she sent his father, George, and grandfather to look for them. They found Harley’s bicycle near the pond and saw footprints on the ice. In attempting to rescue the boys, George Fouchia, too, fell through the ice and drowned. The trial court found that the Highway Department had created and maintained a nuisance in fact. It awarded damages in the sum of $114,275.76 to the estate of George Fouchia, $77,451.20 to the estate of Harley Fouchia, and $89,145.84 to the estate of Lee Steve Gerzeski. Defendants make a number of assignments of error on appeal. We find one of these, that the trial court erred in denying a defense motion for summary judgment based on governmental immunity , to be dispositive and to require reversal. The law of state governmental immunity in Michigan is, with a few exceptions, strictly statutory. McDowell v State Highway Commissioner, 365 Mich 268; 112 NW2d 491 (1961). The immunity is authorized by MCLA 691.1407; MSA 3.996(107), which provides: "Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.” The statute specifies exceptions to governmental immunity where injuries are caused by defective highways, MCLA 691.1402; MSA 3.996(102), negligent operation of government owned vehicles, MCLA 691.1405; MSA 3.996(105), and dangerous or defective conditions of public buildings, MCLA 691.1406; MSA 3.996(106). In addition to the statutory exceptions, governmental immunity has been held inapplicable in two other, related instances. The first is where damage is caused by "direct trespasses” of an instrumentality from government owned land onto private property. See e.g. Ferris v Detroit Board of Education, 122 Mich 315; 81 NW 98 (1899), Herro v Chippewa County Road Commissioners, 368 Mich 263; 118 NW2d 271 (1962), Pound v Garden City School District, 372 Mich 499; 127 NW2d 390 (1964). In such cases, the governmental action which caused plaintiff’s injuries or property damage has been considered nearly an intentional tort. The Ferris, Herro and Pound cases all involved damage caused by water escaping from government land, a traditional strict liability tort. Prosser, Torts (4th ed), § 78, p 505, 508-516. See also Robinson v Township of Wyoming, 312 Mich 14; 19 NW2d 469 (1945). The second non-statutory exception is the maintenance of a per se nuisance. The facts of the instant case make it important to stress that not all actions based on nuisance circumvent governmental immunity. In Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952), nuisances resulting in personal injury were placed in three classifications: (1) nuisances created by illegal conduct (per se nuisances), (2) nuisances created by conduct intended to bring about conditions which, in fact, constitute a nuisance and (3) nuisances created by negligent conduct. In Royston v City of Charlotte, 278 Mich 255, 260; 270 NW 288 (1936), the Supreme Court stated: "Acts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care. ” (Emphasis supplied.) Thus, governmental immunity is inapplicable if the alleged nuisance stems from a condition which is "a nuisance at all times and under any circumstances”. Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 411; 97 NW2d 90 (1959), quoting 66 CJS, Nuisances, § 3, pp 733-34. If the condition was created by ordinary or wilful negligence, but is a nuisance in fact, governmental immunity will bar an action for damages caused by the condition. In the instant case, the trial court held that the state had by its "gross negligence” created and maintained an "intentional nuisance”, one within the category between the per se nuisance and the nuisance created by negligence. Plaintiffs did not assert at trial that the pond was a per se nuisance and they do not do so here. On appeal, plaintiffs assert that the case of Buckeye Union Fire Insurance Co v Michigan, 383 Mich 630; 178 NW2d 476 (1970), altered the Royston doctrine to include an intentional nuisance. In Buckeye, a building, which the state had acquired by tax forfeiture and had allowed to disintegrate, caught fire. The fire spread to a neighboring property. Plaintiff insurance company, as subrogee, sued to recover from the state. The Court of Claims found the state liable but denied recovery based on governmental immunity. After affirmance by this Court, the Supreme Court held that no such immunity existed, reversed the trial court and remanded for entry of judgment. An examination of the decisional language discloses that Buckeye did not create a nuisance in fact exception to governmental immunity. In Part III of its opinion, the Buckeye Court based its holding not on a nuisance exception but on the theory that a governmental immunity statute is subject to an exception based on the constitutional proscription against taking private property without just compensation. Const 1963, art 10, § 2. The Court held that the fire damage constituted a "taking” for which the state must pay compensation. It concluded: "There is no sovereign immunity applicable to a situation of nuisance as we have in this case. "383 Mich at 644. (Emphasis supplied.) The absence of a constitutional provision, therefore, renders a nuisance in fact claim subject to governmental immunity. See Buddy v Department of Natural Resources, 59 Mich App 598; 229 NW2d 865 (1975). Plaintiff responds that the instant nuisance did violate a constitutional provision, the Const 1963, art 1, § 17 proscription of the deprivation of life without due process of law. Plaintiff argues that the protection of life accorded by Const 1963, art 1, § 17 cannot be given a status inferior to the protection of property provided by the condemnation clause as enforced by Buckeye. This is a cogent argument. We find, however, for two reasons, that Buckeye must be given so narrow a construction that it be deemed inapplicable to the instant case. First, from an examination of the precedent on which Buckeye relies, it appears that Buckeye represents an extension of the line of trespass cases, those in which an instrumentality ran from government land onto private land and caused personal injury or property damage. See e.g. Ashley v Port Huron, 35 Mich 296 (24 Am Rep 552) (1877), Herro v Chippewa County Road Commissioners, supra, Commonwealth of Kentucky, Department of Highways v Cochrane, 397 SW2d 155 (Ky App, 1965). In several instances, the Supreme Court refused to extend these cases to instances where injury occurred on the government owned property. This dichotomy was enunciated in Kilts v Kent County Board of Supervisors, 162 Mich 646; 127 NW 821 (1910). There, plaintiff's decedent was killed in a fall from an allegedly dangerous water tower on which he was working. The Court distinguished between a condition of government premises which threatens harm to persons off the premises and one which is dangerous only to persons on the land. By characterizing the matter as one sounding in negligence, not nuisance, the Court found plaintiff’s claim barred by governmental immunity. Kilts was a reiteration of Whitehead v Detroit Board of Education, 139 Mich 490; 102 NW 1028 (1905), where plaintiff, a painter, was injured in a fall from a defective scaffold supplied by defendant. The policy was later reiterated in Dan iels v Board of Education of Grand Rapids, 191 Mich 339; 158 NW 23 (1916) (dangerous stairwell on school premises), and Royston v City of Charlotte, supra (a wrongful death claim arising from the collapse of a swing in a public park). See also McDonell v Brozo, 285 Mich 38; 280 NW 100 (1938), Cooperrider, The Court, The Legislature, and Governmental Tort Liability in Michigan, 72 Mich L Rev 187, 238-249 (1973). Second, and more importantly, the broad interpretation of Buckeye urged by plaintiff would, in effect, eliminate governmental immunity in Michigan, something only the Legislature can do. Any damage to person or property can be linked to the due process clause. We could not reasonably limit such precedent to a taking of life. Could we justifiably allow recovery for the death of an individual caused by a nuisance while denying recovery to one seriously injured by the same nuisance? We think not. Having crossed that threshold, could any personal injury be deemed unprotected by due process and, therefore, barred by governmental immunity? Again, we are doubtful. We doubt, further, whether any rational distinction could be made between those injuries causéd by nuisance and those which result from any other tort. We do not believe that the Supreme Court intended to destroy governmental immunity in Buckeye. As another panel of this Court noted, we certainly could not sanction such results without more specific language by the Supreme Court. Kelley v East Lansing, 50 Mich App 511; 213 NW2d 557 (1973). We find these same problems present in the Buckeye rationale. As one commentator notes, in criticizing the Buckeye holding, our difficulties stem from the Buckeye opinion’s classification of the damage as a "taking”: "As a basis for claim against the government, the 'taking of property for public use’ has constitutional status because it involves not merely a loss to the citizen as the by-product of governmental activity, but also an unjust enrichment of the governmental unit at the expense of the citizen. It is one thing to stretch the taking-for-use concept to include situations in which it can fairly be said that the government has appropriated to itself without acquisition of title and perhaps without physical occupation the use of the citizen’s proprietary interests. It is quite another to say that a taking-for-use occurs whenever damage is done.” Cooperrider, 1971 Annual Survey of Michigan Law, Torts, 18 Wayne L Rev 503, 522 (1972). (Emphasis in original.) Given these problems and no clear precedent from the Supreme Court, we are constrained to find governmental immunity applicable to the instant case. We, therefore, reverse the trial court’s decision and remand for entry of judgment for defendants. No costs. McGregor, P. J., concurred. Although referred to as a summary judgment, GCR 1963, 117, by counsel and court below, the defense of immunity is one which serves, if proven, to extinguish or cut off the right to relief even though the facts pleaded would otherwise state a claim. Such motion therefore should have been brought under the accelerated judgment provisions of GCR 1963, 116. In this case, however, this matter is one of labels. See Cibor v Oakwood Hospital, 14 Mich App 1; 165 NW2d 326 (1968). In McCann v Michigan, 47 Mich App 326, 333; 209 NW2d 456 (1973), lv granted, 390 Mich 765 (1973), another panel made the bare assertion that "actions grounded in nuisance” represent an exception to governmental immunity. We expressly reject this statement. The constitutional provision applicable in Buckeye was Article 13, § 1 of the Constitution of 1908, a provision substantially the same as Const 1963, art 10, § 2 except for the latter’s requirement that "[cjompensation shall be determined in proceedings in a court of record”.

Per Curiam. Defendant appeals as of right from his November 8, 1974 jury convictions of first-degree murder of Miss Annie Washington, MCLA 750.316; MSA 28.548, and assault with intent to commit murder of James Benson, father of Miss Annie Washington, MCLA 750.83; MSA 28.278. Both of the victims were shot by defendant using a shotgun. The defendant claims he did not pull the trigger of the gun that killed Miss Washington, but that he loaded it and when he shut the magazine the gun went off. He testified that he then wheeled and pumped the gun and pulled the trigger. This second shot seriously wounded Mr. Benson. Previous to the incident Mr. Benson had told defendant that his daughter did not want to talk to him, and that he, Mr. Benson, did not want him in the house. Defendant testified that prior to entering the house he went to the back of his car and got his shotgun and three shells. The shooting took place in the kitchen of Mr. Benson’s home. Mrs. Butler who lived upstairs in the Benson home said she saw the defendant just prior to the shooting come to the residence and enter the house with a shotgun in his hands. She had also heard defendant two days prior to the incident say that he intended to "kick open the door and blow them all away”. Mrs. Butler’s husband, Mr. Butler, also testified he heard defendant make those threats two days prior to the shooting incident. With reference to the conviction of defendant on the charge of assault with intent to commit murder of Mr. Benson, we determine that a careful examination of the record discloses no error. As to the conviction of defendant for the murder of Miss Washington, defendant claims error in the trial court’s refusal to instruct the jury on involuntary manslaughter and cites the case of People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), in support of his position. Prior to the decision in the Ora Jones case, the law in Michigan was to the effect that involuntary manslaughter was not a lesser included offense of murder because the crime of involuntary manslaughter includes several elements not included in the crime of murder. People v Morton, 16 Mich App 160; 167 NW2d 834 (1969), reversed on other grounds, 384 Mich 38; 179 NW2d 379 (1970), People v Kruper, 340 Mich 114, 121-122; 64 NW2d 629, 632-633 (1954), People v Ryczek, 224 Mich 106; 194 NW 609 (1923), and People v Knott, 59 Mich App 105, 112; 228 NW2d 838, 841 (1975). Our Supreme Court in People v Ora Jones, supra, has now ruled that under the theory of "cognate” lesser offenses, an instruction on involuntary manslaughter must be given in a murder case. This ruling having changed the existing law, and not having been declared by our Supreme Court to be retroactive, we deem it to have prospective effect. Inasmuch as the instant case was tried in November, 1974, prior to the Ora Jones decision, that decision is not applicable herein. Affirmed.

Bashara, P. J. The appellant, Michigan Mutual Liability Company, appeals from a judgment holding the appellant responsible for both prejudgment and post judgment interest on a verdict that was within the limits of a liability policy issued by the appellant. This action arose when an automobile driven by the appellee, Marian Dittus, was rear-ended by a car driven by Robert Geyman. Marian Dittus sued for personal injuries, while her husband Richard, who is also an appellee, sought recovery for medical expenses and the loss of the services of his wife. At the time of the collision, Geyman was insured by the appellant on an automobile policy providing a $250,000 maximum liability for bodily injury to one person. Marian Dittus and Richard Dittus obtained verdicts of $200,000 and $35,000 respectively. After the verdict, costs were taxed in favor of the appellees in the amount of $1,426. The court also awarded the appellees interest of $45,118 at the rate of 6% on the verdict from the date of the complaint to the date the judgment was paid. The appellant paid the appellees $251,426. This amount includes the $235,000 verdict, $15,000 in prejudgment interest and $1,426 in costs. The payment to the appellees was subject to an agreement and satisfaction of judgment which provided that Geyman was relieved from any further personal liability. It was further agreed that the appellees could test in a subsequent action the liability of the appellant for prejudgment interest in excess of the $15,000 paid by the appellant. The agreement was in accordance with the appellant’s stipulation that it was liable for prejudgment interest, but only up to an amount that would not exceed the policy limits. The applicable insurance provisions are as follows: "Bodily Injury Liability "To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of: "A. bodily injury * * * sustained by any person; * * * "Supplementary Payments: To pay, in addition to the applicable limits of liability: "(a) * * * all costs taxed against the insured in any such suit and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability thereon;” Appellees contend that prejudgment interest on the entire judgment is appropriate under either of two theories. First, it was argued at oral hearing that prejudgment interest is covered by the provisions in the insurance contract pertaining either to "damages” or "costs”. The Supreme Court in Ballog v Knight Newspapers, Inc, 381 Mich 527; 164 NW2d 19 (1969), construed the prejudgment interest statute, MCLA 600.6013; MSA 27A.6013, as procedural. Damages are substantive, therefore prejudgment interest must be recoverable as costs under the supplementary payments provision. Second, appellees propose that as Michigan allows an injured party to recover interest on the entire judgment from the date of the complaint, public policy mandates that insurance companies pay prejudgment interest on the entire verdict because they control the litigation. It is appellant’s position that the bodily injury liability provision requiring the insurer to pay "all sums which the insured shall become legally obligated to pay as damages” means that the insurer is liable for any judgment including prejudgment interest, but only up to an amount that does not exceed the policy limits. The first issue for our consideration is whether prejudgment interest is recoverable as interest or costs under the supplementary payments provision, or as damages under the bodily injury liability clause. The law is well settled in Michigan that policies containing ambiguities are construed against the insurer and most favorably to the insured. Weaver v Michigan Mutual Liability Co, 32 Mich App 605, 609; 189 NW2d 116 (1971). Moreover, insurance policies must be construed in accordance with the ordinary and popular sense of the language in order to avoid strained interpretations. Cora v Patterson, 55 Mich App 298, 300; 222 NW2d 221 (1974). The portion of the supplementary payments clause relating to interest provides that the insurance company shall pay "all interest on the entire amount of any judgment * * * which accrues after entry of the judgment and before the company has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of the company’s liability * * * ”. This language in plain and unambiguous terms provides that the insurer will pay post judgment interest on the entire amount of the judgment. Prejudgment interest is not recoverable under this provision of the policy. We next consider whether prejudgment interest is recoverable as a cost under the supplementary payments provision. Costs were not awardable at common law. Booth v McQueen, 1 Doug 41 (Mich, 1843). Costs are only recoverable when there is statutory authority awarding them. Hester v Commissioners of Parks and Boulevards of the City of Detroit, 84 Mich 450; 47 NW 1097 (1891). In general the specification of items which are taxable as costs and the prescription of amounts are enumerated in RJA Chapters 24 and 25. See MCLA 600.2401, and included Practice Commentary in Vol 33, MSA 27A.2401. Prejudgment interest is not included therein, but rather provided for in RJA Chapter 60. MCLA 600.6013; MSA 27A.6013. We conclude that prejudgment interest is not recoverable under the supplementary payments provision covering costs. It remains for us to determine whether prejudgment interest is covered by the bodily injury provision requiring the insurer to pay "all sums which the insured shall become legally obligated to pay as damages * * * ”. We note that appellant has stipulated that it is liable for prejudgment interest as damages, but only to the extent that the amount of interest falls within the policy limits. The distinction between interest on a judgment and interest as an element of damages had been often noted. The former is computed and added to the general verdict. Motyka v Detroit, Grand Haven & Milwaukee Ry Co, 260 Mich 396, 398; 244 NW 897 (1932), Swift v Dodson, 6 Mich App 480; 149 NW2d 476 (1967). The latter is awarded by the jury as an element of damages. Vannoy v City of Warren, 26 Mich App 283, 288; 182 NW2d 65 (1970). Prejudgment interest from the date of the complaint is purely statutory, MCLA 600.6013;' MSA 27A.6013, and is computed and added to the general verdict. Waldrop v Rodery, 34 Mich App 1, 4; 190 NW2d 691 (1971). Prejudgment interest is not an element of damages covered by the bodily injury liability provisions. Our determination that prejudgment interest is not covered by the ."damages” provision in the insurance policy, however, in no way affects the appellant’s stipulation to which it is bound. We now turn our attention to whether public policy requires the appellant to pay all prejudgment interest on any verdict that is within the maximum policy limits of the insurance policy. The issue of liability of insurance companies for prejudgment interest was recently considered in. Cates v Moyses, 57 Mich App 405; 226 NW2d 106 (1975), modified 394 Mich 762; 228 NW2d 380 (1975). In Cates the plaintiff obtained a judgment for $60,000 against the defendant. The defendant’s insurance policy contained a maximum liability limit of $10,000. The supplementary payments, clause in Cates was identical in its key language to the corresponding provision in the instant case. Prior to commencement of the lawsuit the defendant’s insurance company advanced $1,489 to the plaintiff. After a judgmeht was obtained against the defendant the insurer admitted a remaining liability of $8,511 under its policy, plus interest on that amount from the date the suit was commenced. Finding that the insurer was bound by , its judicial admission, that it was liable for prejudgment interest, the Court of Appeals in Cates went on to hold that the insurance company was liable for prejudgment interest on the entire verdict under the authority of Cosby v Pool, 36 Mich App 571; 194 NW2d 142 (1971), lv den 386 Mich 782 (1972). In Cosby the plaintiffs obtained a $206,000 verdict against the defendant. The supplementary payments clause in the defendant’s insurance policy provided that the insurer would pay "interest accruing on verdict or after judgment up to the date of payment or tender to the judgment creditor * * * upon the company’s share of such verdict or judgment”. The policy was issued in 1963 when the interest statute, MCLA 600.6013; MSA 27A.6013, only allowed recovery of post judgment interest. 1965 PA 240 amended MCLA 600.6013; MSA 27A.6013, to allow recovery of prejudgment interest. The trial court refused to allow prejudgment interest on the theory that it was an unconstitutional impairment of a contractual obligation. The Court of Appeals reversed the holding that the amendment did not affect the substantive undertaking of either the insured or the insurer. The supplementary payments provision clearly provided that the insurer assumed the risk to pay prejudgment and post judgment interest on its share of the verdict. The contractual obligation of the insurer was not changed, only the date of computing interest was changed from the date of judgment to the date of the complaint. When the Court of Appeals in Cates determined that the insurer was liable for prejudgment interest to the extent of the entire judgment it stated the following: "Interest is to be computed as of the date the complaint was filed, MCLA 600.6013; MSA 27A.6013. When Cosby, supra, stated that an insurance company can limit its risks, it was discussing only the issue of the amount on which the company’s interest liability would be based, not the date the interest was to begin. In its holding on the date issue, the Cosby court held that the statute requiring interest to be computed as of the date suit was commenced replaced the contrary policy provision and that therefore the statute superseded the interest clause of the policy.” Cates v Moyses, supra, at 411. It is our opinion that the Court in Cates incorrectly applied Cosby to its factual situation because Cates v Moyses, supra, at 408, had already recognized that the supplementary payments provision in Cates and Cosby were clearly distinguishable. In Cates the supplementary payments provision stated in plain and unambiguous terms that the insurer was only liable for post judgment interest, while the corresponding provision in Cosby imposed on the insurer a clear undertaking to pay prejudgment and post judgment interest on its pro rata share of the verdict. Therefore, in Cosby the amendment to the interest statute allowing prejudgment interest became part of the contract which itself provided for prejudgment interest. However, to hold as did Cates, that the prejudgment interest statute is incorporated into an insurance contract that does not provide for prejudgment interest, is to impose a risk upon the appellant which it neither assumed nor charged a premium for. The Supreme Court recognized the flaw in the reasoning of Cates v Moyses, supra, and modified the Court of Appeals decision. It held on the authority of Cosby v Pool, supra, that the insurer was liable for prejudgment interest only to the extent of the insurance policy limits less the amount advanced to the plaintiffs prior to commencement of the suit. We believe that the Supreme Court was citing Cosby v Pool, supra, for the proposition that an insurer should be liable only for the interest that accrues on the amount of risk it has assumed. In Cates the insurer stipulated that it was liable for prejudgment interest on the maximum policy limits less the advance. Therefore, the insurer believed it had assumed this risk and the Supreme Court held it liable to that extent. In the case before us the appellant had stipulated to liability for prejudgment interest to the extent that the prejudgment interest did not exceed the policy limits. We find nothing in the insurance policy that imposes an obligation on the appellant to pay prejudgment interest. However, even if the appellant had not so stipulated we believe it still would have been liable for prejudgment interest to the extent that the amount did not exceed the policy limits. > In the present case Geyman contracted for liability insurance with the appellant and paid premiums for coverage up to $250,000 and he is entitled to that protection. By virtue of MCLA 600.6013; MSA 27A.6013, defendant is required to pay interest on the judgment from the date of the complaint. The fact that the prejudgment interest does not fall within the provisions covering interest, costs or damages in no way negates the insurer’s liability for prejudgment interest up to an amount that does not exceed the policy limits. In other words the appellant is liable for the amount of risk it assumed. We hold that the liability of an insured for prejudgment interest is also imposed upon the insurer upon public policy grounds to the extent: that the amount of prejudgment interest does not exceed the policy limits. This result finds support elsewhere. See Cleghorn v Ocean Accident & Guarantee Corp, Ltd of London, 244 NY 166; 155 NE 87 (1926), Factory Mutual Liability Insurance Co of America v Cooper, 106 RI 632; 262 A2d 370 (1970). Laplant v Aetna Casualty & Surety Co, 107 NH 183; 219 A2d 283 (1966), 1 Long, The Law of Liability Insurance, § 9.01, p 9-7. The effect of allowing prejudgment interest in an amount beyond policy limits would be to force an insurance company to acquiesce to a plaintiff’s demand at an early stage of the proceedings where it may have a meritorious defense, rather than run the risk of paying a large amount of prejudgment interest due to the delays engendered by crowded dockets should the plaintiff eventually recover. Reversed and remanded for entry of judgment consistent with this opinion. No costs. W. S. White, J., concurred.

Per Curiam. Plaintiff sought and was granted an order of superintending control by the Ingham County Circuit Court. The order directed defendant Civil Rights Commission (CRC) to dismiss four cases, involving plaintiff, then pending before it. Defendant appeals this order. On October 17, 1970, four former employees of plaintiff filed complaints with the CRC. All alleged racially motivated discharge by plaintiff on May 26, 1970. The same employees had filed union grievances on June 5, 1970, claiming wrongful discharge. The grievances did not raise the issue of racial discrimination and did not result in the employees’ reinstatement. On April 16, 1971, plaintiff received a notice to appear before the CRC on April 29, 1971, for a hearing on the discharge of the four employees. The notice also ordered plaintiff to produce at the hearing various records and documents relating to its Eldon Avenue Axle Plant, where the four men had been employed.* Plaintiff filed, a motion with the CRC on April 27, 1971, to dismiss the complaints and to revoke the notice to produce records and documents. The motion claimed that the CRC lacked jurisdiction in the matter because the complaints were untimely. The CRC did not immediately act on this motion, and on April 29, 1971, plaintiff brought an action against the CRC in Ingham County Circuit Court. Plaintiff sought an order of superintending control directing the CRC to dismiss the complaints, or, in the alternative, an order directing the CRC to stay the proceedings before it pending disposition of the motion to dismiss that plaintiff had filed on April 27. An order to show cause issued and, after a hearing, the circuit court on May 21, 1971, ordered the CRC to stay its notice order of April 16, 1971, until plaintiff’s motion of April 27 was heard and decided. The court retained jurisdiction to later consider plaintiff’s request for an order of superintending control directing dismissal of the complaints. Hearings on plaintiff’s motion to dismiss the complaints were concluded in April, 1972. The CRC denied plaintiff’s motion in an opinion and order issued November 27, 1973. On January 7, 1974, plaintiff filed a motion for an order of superintending control in the circuit court. The court on November 19, 1974, issued its opinion, which 10 days later became its order, directing the CRC to dismiss the four complaints against plaintiff. The CRC questions the áppropriateness of an order of superintending control in this situation as well as the correctness of the court’s decision that the CRC lacked power to act upon the four complaints. The constitution of 1963 created the CRC and defined its function: "It shall be the duty of the commission in a manner which may be prescribed by law to investigate alleged discrimination against any person because of religion, race, color or national origin in the enjoyment of the civil rights guaranteed by law and by this constitution, and to secure the equal protection of such civil rights without such discrimination. The legislature shall provide an annual appropriation for the effective operation of the commission.” (Emphasis supplied.) Const 1963, art 5, § 29. While the constitution gave broad investigatory and enforcement powers to the CRC, it also provided for legislative control over the manner in which these powers may be exercised. Michigan Civil Rights Commission v Clark, 390 Mich 717; 212 NW2d 912 (1973), Civil Rights Commission v Chrysler Corp, 64 Mich App 393; 235 NW2d 791 (1975), see Cramton, The Powers of the Michigan Civil Rights Commission, 63 Mich L Rev 5, 16 (1964). MCLA 37.4; MSA 3.548(4) states: "A complaint alleging an unlawful discriminatory practice is subject to the same procedure as a complaint alleging an unfair employment practice under Act No. 251 of the Public Acts of 1955, being §§ 423.301 to 423.311 of the Compiled Laws of 1948.” This legislative control over the CRC procedure is authorized, as indicated above, by the constitutional provision creating the CRC. Section 7(b) of 1955 PA 251, MCLA 423.307(b); MSA 17.458(7)(b), provides that a complaint may be filed within 90 days of the alleged act of discrimination. This 90-day limitation, made applicable to complaints filed with the CRC, barred consideration by the CRC of the four complaints alleging discriminatory discharge by plaintiff, since they were filed almost five months after the discharges. In the recent case of Civil Rights Commission v Chrysler Corp, supra, this Court decided that the provision in MCLA 423.307(b); MSA 17.458(7)(b), for a verified complaint in writing is a mandatory prerequisite for action by the CRC. There is no reason to view differently the provision for filing a complaint within 90 days of the alleged discriminatory act. In Pompey v General Motors Corp, 385 Mich 537; 189 NW2d 243 (1971), the Supreme Court, while noting that the 1963 constitution elevated the formerly statutory right to be free from discriminatory employment practices, stated that the statutory limitation period remained intact and barred complaints filed after the 90-day limitation period had run. 385 Mich at 550, n 11. The CRC asks this Court to hold that the limitation period was tolled by the filing of grievances under the collective bargaining agreement. We are not inclined to disregard the recent recognition given to the independence of employees’ contractual and constitutional or statutory rights to be free from discrimination in employment. Alexander v Gardner-Denver Co, 415 US 36; 94 S Ct 1011; 39 L Ed 2d 147 (1974), Civil Rights Commission v Chrysler Corp, supra, Pompey v General Motors Corp, supra, recognized the independence of statutory and judicial remedies in this area. The independent source of the various remedies available to an employee subjected to alleged discrimination precludes us from accepting the CRC’s claim that pursuit of one remedy should toll the limitation period applicable to another remedy. Cf. Johnson v Railway Express Agency, Inc, 421 US 454; 95 S Ct 1716; 44 L Ed 2d 295 (1975). Defendant CRC contends that GCR 1963, 711.2 should have prevented the circuit court’s issuance of an order of superintending control. GCR 1963, 711.2 expresses the policy that an order of superintending control should not be used if "another plain, speedy and adequate remedy is available to the party seeking the order”. We do not think that the court abused its discretion or acted in disregard of the policy expressed in GCR 1963, 711.2. We do not read GCR 1963, 711.2 as requiring a judicial "hands off’ policy towards an administrative tribunal acting without authority. Cf. Radke v Employment Security Commission, 37 Mich App 104; 194 NW2d 395 (1971). It only requires consideration of other avenues of review open to the party requesting an order of superintending control. The CRC erred in ruling on the preliminary question of its power to act upon complaints filed after the 90-day limitation period, and the ruling came some 2-1/2 years after plaintiff raised the question by its motion to dismiss. It is extremely difficult to view an appeal from the final order of the CRC, after what, by all indications, would be lengthy and costly proceedings, as a "plain, speedy and adequate” means to correct a preliminary error. Affirmed. The CRC sought production of the following records and documents: 1. The initial job assignment, date of hire, pay rate and job classification assignment of all hourly employees hired at the Eldon facility since January, 1967, to the present, indicating the race of each employee. 2. Copies of the following reports written at the Eldon facility since January, 1967, to the present, indicating the race of each employee: A. Death or Serious Injury reports B. Injury notice C. Medico-Legal Report (write up) D. Monthly Activity Report E. Lost Time Report F. Notice of Occupational Disability G. Employee’s Basic Report of Injury — Form 100 H. Supervisor’s Report of Injury 3. Copies of all (BLS-Z-16) reports filed by the Eldon facility since January, 1967, to the present; 4. Name, race, job classification and plant seniority of each employee who has applied for a skilled trades position at Eldon since January, 1967, to the present, indicating the disposition of each application; 5. Current seniority lists for all departments at Eldon, indicating race of each individual; 6. Copies of all requests for intradepartmental, interdepartmental and plant transfers made at the Eldon Plant since January, 1967, to the present, indicating the race of each employee and the disposition of each request; 7. Copies of all preventive maintenance orders, machine repair orders and moving stock repairs at the Eldon plant since January, 1967, to the present; 8. The race, date of hire and job classification of each employee (hourly) who has been .transferred'to or from Eldon since January, 1967, to the present; and 9. Copies of EEO-1 forms from January, 1967, to the present for the Eldon facility. 10. Copies of appraisals on foreman candidates approved and rejected at Eldon Avenue; for each department from December, 1969, to present indicating department, name, race, job classification and disposition of request.