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"Plaintif's counsel: I move to strike out 'many others I don't just call to mind.'
“The Court: Yes; it may stricken out. (Exception for defendant.)
John Allen was also called as a witness on behalf of the defendant and testified as to the general reputation of James W. Neal. We quote this testimony for the reason that the court struck it out entirely. The witness testified as follows:
"I live in the township of Burns and have lived there for eighteen years. I know James Neal.
"Q. Do you know what his general reputation is for truth and veracity in that community?
“A. Yes, sir.
"I lived about five miles and a half or such a matter from James, where he lived when he was on the farm. There are near neighbors to him down there. Country is quite thickly populated. I can't call to mind whom I have heard say James' reputation for truth and veracity was bad; but I heard it spoken.
“Q. Reflect back in your mind, haven't you too got James' reputation for chastity mixed with his reputation for veracity?
“A. I don't think I have." Redirect examination:
“Q. You may state whether or not you have heard many or few persons in the vicinity in which he resides discuss this question as to his reputation ?
"A. I heard quite a few." Recross-examination:
"Q. Can you give the name of any man in the village of Byron or in the township that you have heard
"A. I can't.
“Q. Can't you tell one of them? There are a good many people in the township of Burns. About what is the population in that township?
“Counsel for plaintiff then said: Your honor, in view of the statement made on cross-examination of this witness that he couldn't say he heard any of the people that lived in that neighborhood or vicinity say any of these things, I move to strike out, and I base it on the case of Elijah Calkins v. Ann Arbor Railroad.
Such testimony as that is incompetent. “Defendant's counsel: I object to its being stricken out.
“The Court: Let me ask a question or two. "By the Court: Q. Where does Mr. Neal live now? “A. He lives in Owosso.
"Q. How long since he lived—did he ever live in the township of Burns outside of the village of Byron? "A. Yes—Oh yes, sir; he has. “Q. How many years ago? "A. I should think about
"The Court: I withdraw that question. Where has he lived in the last five years?
"A. In the last five years? "Q. Yes.
“A. Why, he has been all over, I guess, most of the time. Traveling some.
“Q. Do you know where he has lived in the last five years any of the time?
"A. He has lived on the farm within the five years. "Q. Is that farm in the township of Burns? "A. No, sir; it is in Livingston county.
“Q. Livingston county? Have you ever heard any one talk about him in that neighborhood about his reputation for truth and veracity, in the neighborhood where he resided when he lived in Livingston county?
“A. Why, I think so; but I couldn't tell any names. "Q. Can you tell when it was? “A. Well, no; I can't. "Q. Can you tell where they resided ? "A. No, sir.
“Q. Now did he live in the township of Byron some to your knowledge?
"A. No, sir; he did not.
“The Court: I think it may stricken out. (Exception for defendant.)"
"Q. How far from the Burns township line did he live when he lived on this farm in Livingston county?
"A. He lived just across the road from the Burns township line.
“Q. You have lived in the township of Burns during all that time?
"A. Yes, sir.
"Q. Have you heard people who live on the Burns township side of the road, and who live near him, talk about his reputation for truth and veracity?
“A. Yes, sir.
“Defendant's counsel: I now move to reinstate the testimony that has been stricken out."
By the court: "Q. Who was it, when was it? "A. You can hear it most any time. "Q. No; when was this particular conversation? "A. It is the general impression.
"Q. When was the conversation given, give the time?
“A. I can't state.
"Q. Do you remember of hearing any one talk about it in the last year in that vicinity?
"A. I don't remember.
"A. I can't speak any names; but I am positive I heard it.
"The Court: I will explain to them so they will understand possibly. General reputation is what people generally say about them, not what one or two persons say, but what people in the vicinity where the parties reside generally say of them. 'Generally' means more than one or two. Proceed.
“Defendant's counsel: Did the court rule on my motion to reinstate?
“The Court: No; I will deny the motion. (Exception for defendant.)”
The trial having resulted in a verdict and judgment for the plaintiff for the full amount of the note sued upon, the defendant entered a motion for a new
trial, assigning many grounds therefor, among others the following:
(1) That Christopher Gute, one of the jurors who sat during the trial of said cause, was not a legally qualified juror, because he was not a citizen of the United States, nor a citizen of the State of Michigan, which facts were unknown to defendant or to his counsel.
(2) Because the verdict of the jury therein is against the weight of the evidence.
The affidavit in support of the motion, in so far as the juror was concerned, was to the effect that Christopher Gute, one of the jurors who sat in said cause, was not a citizen of the United States of America, nor a citizen of this State, and that this fact was unknown to defendant until after the verdict was rendered.
The motion for a new trial was denied, and with reference to the second ground the circuit judge said:
"It did occur to the court that the weight of the evidence was with the defendant, or, in other words, that the plaintiff had not shown by a preponderance of the evidence that plaintiff was entitled to recover; but the witnesses were all in court and appeared upon the witness stand, and the jury listened to their testimony, and the court does not feel that the jury acted fraudulently in their decision, and, from the fact that it is the duty of the jury to pass upon questions of fact, the court does not feel that he is authorized to set aside the verdict upon that ground.”
The motion for a new trial was overruled, to which ruling defendant's counsel duly excepted.
The defendant has brought the case here for review, and there are more than 50 assignments of error. We have examined the record carefully and must say that many of the assignments of error are without foundation, and some parts of the argument of counsel for appellant are not based upon any assignments of error. It is the claim of defendant:
(1) That there were errors in the rulings of the court during the trial in receiving and rejecting testimony. (2) Errors consisting of prejudicial
prejudicial remarks made by the court during the trial.
(3) Error in refusing to grant a new trial.
The questions which we shall discuss are covered by assignments of error.
1. It is the claim of counsel for defendant and appellant that the case was tried in the court below upon the theory by defendant that a fraud was being perpetrated upon him, and that in such a case the law permits a wide latitude in the range of testimony, especially in the cross-examination of witnesses; that the trial court adopted too strict a rule in the crossexamination of the payee of the note, James W. Neal. It is urged that it was material to show that James W. Neal had no money to loan at the time he claimed the note sued upon was made. In view of the direct conflict in the evidence, and the fact that fraud was claimed by the defendant, we are of opinion that the court should have given a wider range to the examination of witnesses than was here given.
This court has said that, where there is a defense of fraud set up, a wide latitude should be allowed upon the cross-examination of a witness who was a participant in the transaction. Anderson v. Walter, 34 Mich. 113; Jacobson v. Metzger, 35 Mich. 103; Gutsch v. Pittsley, 51 Mich. 566 (17 N. W. 59); Fury v. Strohecker, 44 Mich. 337 (6 N. W. 834); Wessels v. Beeman, 87 Mich. 481 (49 N. W. 483).
We are of opinion that it was material and competent for the defendant to show that James W. Neal offered to trade his son's note of $1,000 to Mr. Steinacker in the month of June, 1911, and that he had such note in his possession, as bearing upon the probability of the truthfulness of the testimony of the wife of the defendant above referred to. Banghart v.