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See, also, People v. Hull, 86 Mich. 449 (49 N. W. 288); Williams v. West Bay City, 119 Mich. 395 (78 N. W. 328); People v. O'Hare, 124 Mich. 515 (83 N. W. 279); Schwanz v. Wujek, 163 Mich. 492 (128 N. W. 731).

Several assignments of error relate to the charge of the court. We quote but a single portion of the charge:

“I charge you, gentlemen of the jury, that you have no right to disbelieve those police officers merely because they happen to be police officers; and, while the counsel for the defendant in this case has borne rather heavily upon the officers, I am of the opinion that the officers in this case are entitled to a great deal of credit. They saw their duty and they discharged it on the night in question. They took this man into their custody when they found him fleeing. They searched him, and then turned him over to their superior officers. A complaint was made against him for robbery, being armed, and it is for you now to say, after hearing the evidence, whether the State has proved its case against this defendant. If, in your judgment as jurors, you believe the State has failed to prove this man guilty of this crime, it becomes your duty to discharge him."

The judge must have overlooked the claim of respondent that he went to the officers because rocks or bricks were being thrown at him, when the judge said, “They took this man into custody when they found him fleeing.” Whether he was fleeing or not was a question for the jury, and not the judge. Some of the language we quoted from the opinion in McDuff v. Journal Co., supra, is applicable here. See, also, People v. Hare, 57 Mich. 505 (24 N. W. 843); People v. Murray, 72 Mich. 10 (40 N. W. 29); People v. Clarke, 105 Mich. 169 (62 N. W. 1117); People v. Corey, 157 N. Y. 332 (51 N. E. 1024).

This court in the recent case of People v. Fritch, 170 Mich. 258 (136 N. W. 493), had occasion to speak of the practice of commending some of the witnesses, and it is not necessary to repeat what was said there.

181 Mich.-4

For the errors pointed out, this court is required to reverse the judgment of the trial court, set aside the conviction of respondent, and award a new trial. Respondent will be surrendered to the custody of the sheriff of Wayne county.

MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

BENDER v. WAYNE CIRCUIT JUDGE.

1. ARREST-CAPIAS—COMMENCEMENT OF ACTION-PLEADING.

Act No. 168, Pub. Acts 1899, amending section 10006, 3

Comp. Laws (5 How. Stat. [2d Ed.] $ 12669), as to the time for filing the declaration in the cause, applies to actions commenced by capias only, not to suits begun by

the issuance of a summons. 2. DEFAULT-OPENING AND VACATING—CAPIAS.

Under Circuit Court Rule 126, it is discretionary with the

circuit dge to open a default of the plaintiff in filing a declaration in an action commenced by summons upon a motion and showing excusing the failure, for the rea. son that his attorneys were laboring under a misapprehension or mistake, and failed to take the step within the required time.

Mandamus by Fred Bender against Alfred J. Murphy, one of the circuit judges for the county of Wayne, to compel respondent to vacate an order opening the plaintiff's default in an action wherein relator was defendant. Submitted April 28, 1914. (Calendar No. 26,191.) Writ denied June 1, 1914.

George P. Palmer, for relator.
Sloman & Sloman, for respondent.

MOORE, J. This is a mandamus proceeding. The petition shows that Sloman & Sloman began a suit against relator in the circuit court by summons on December 16, 1913; that on December 24, 1913, defendant therein caused his appearance to be entered; that for want of service of declaration, on the 5th day of January, 1914, defendant caused the default of the plaintiffs to be entered; that on February 3, 1914, the plaintiffs moved to set aside said default. On February 27, 1914, the court entered an order as follows:

“In this cause ordered that the default of plaintiff be and hereby is set aside. It is further ordered that plaintiff be and hereby is allowed three days to serve and file a copy of declaration, and that defendant be allowed costs in the sum of fifteen dollars."

A motion was made to vacate this order, which motion was denied. Other motions and orders were made which are not material to the inquiry here.

This is an application for an order requiring the circuit judge to set aside the order of February 27th, above quoted. In his answer to relator's petition the circuit judge returned in part as follows:

“That, in answer to paragraph 5 of said petition, this respondent says that he did make the order set forth in paragraph 5 of said petition, but that he did so upon a hearing in open court after due consideration of the petition of said Sloman & Sloman to have said default set aside, and the affidavit upon which the same was based, and after hearing arguments of counsel for the respective parties, and because he found that said Sloman & Sloman had been prevented from filing their declaration in said case within the time required by Circuit Court Rule No. 2, by reason of a mistake, and while laboring under a misapprehension, and because said Sloman & Siðmạn had made application to the circuit court for the county of Wayne, as required by Circuit Court Rule '126,' and were entitled under the finding of the court to have said default set aside."

The proceeding involves a construction of sections 10004, 10005 and 10006, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12669), and the amendment made to the last-named section by Act No. 168 of Public Acts of 1899. We quote the three sections:

(10004) SEC. 21. If a defendant arrested on process on which he is required to be held to bail, shall be committed to prison for the want of such bail, the sheriff or other officer making the arrest shall specially return upon such process, the fact that the defendant is imprisoned for want of bail.

“(10005) SEC. 22. Upon such return being made, the plaintiff shall declare against the defendant before the end of the term next after such process was returnable, and shall deliver a copy of the said declaration to such prisoner, or to the sheriff or keeper of the jail in whose custody such prisoner shall be; and if such declaration be not served as herein prescribed, the defendant shall be discharged from his imprisonment, and shall be entitled to judgment of discontinuance against the plaintiff.

* (10006) SEC. 23. When a defendant shall have appeared in any cause, by causing his appearance to be entered, or by putting in and perfecting special bail, where such bail is required, the plaintiff shall declare against such defendant, by the end of the next term after the return of the writ by which such suit was commenced."

The amendment consists of substituting the words "within fifteen days after the issue of said writ" for the words "by the end of the next term after the return of the writ by which such suit was commenced," in section 10006.

The relator claims that since this amendment a circuit judge is not authorized to set aside a default, whatever the showing, entered in a case commenced by summons for failure to file a declaration within 15 days after the issuance of the summons.

It is significant that every time, so far as we can learn, that this section of the statute has been up for construction before this court, the case has been a capias case. We think that a reading of section 10006, in connection with the two sections which precede it, indicates clearly that all three sections relate to actions commenced by capias. The circuit judge had a right to enter the order he did by virtue of Circuit Court Rule 12b.

The writ is denied, with costs.

MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

ROGREN V. CORWIN.

HIGHWAYS AND STREETS—EMINENT DOMAIN_PUBLIC NECESSITY.

The objection that a road is open at one end only, is not,

as a matter of law, conclusive on the issue of public necessity, in proceedings to lay out a highway. If there is evidence for and against the necessity of the way and the convenience to the public, the issue is for a jury under proper instructions; nor is it essential that the highway should be indispensable or imperative to the public. No statute or rule of law determines that before a public highway can be laid out it must have certain and definite termini in other public highways.

Error to Wexford; Lamb, J. Submitted April 30, 1914. (Docket No. 60.) Decided June 1, 1914.

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