tion some time after the making of the alleged false representations was admissible for the purpose alleged, although it is not apparent how the introduction of the circular could have prejudiced the respondent, who admitted an indebtedness largely in excess of his assets existing at the time the representations were made.

4. The court erred in permitting the testimony of Mr. Kilbourne to be given, who at the time to which his testimony related was acting as attorney for Mr. Andre. The testimony related to a conference at the office of Mr. Alexander between Mr. Andre and his attorney, Mr. Kilbourne, on the one side, and Mr. Alexander and Mr. Briggs, upon the other. The statements made at this conference were evidently not confidential in any respect, and were consequently not privileged. Cady v. Walker, 62 Mich. 157, 28 N. W. 805, 4 Am. St. Rep. 834; 23 Am. & Eng. Ency. of Law (2d) Ed.) 73.

We are also of the opinion that the testimony was admissible as against the grounds of incompetency, immateriality, and irrelevancy. For the error in submitting the question of ownership of real estate to the jury, the conviction is reversed, and a new trial granted.

SWEET v. SMITH, Com'r. (Supreme Court of Michigan. July 13, 1908.) MANDAMUS - WHEN GRANTED-ENFORCEMENT OF LAW OFFICIAL DUTY.

The violation of Sunday laws by playing baseball is a purely public grievance, and redress must be sought by the people's public agents, and not by mandamus to compel the commissioner of police of a city to enforce the laws in that respect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 20, 143.]

Certiorari to Circuit Court, Wayne County. Certiorari by John Sweet to review the action of the circuit court for Wayne county in denying a writ of mandamus to compel Fred W. Smith, commissioner of police of the city of Detroit, to enforce Sabbath laws. Writ denied.

Argued before GRANT, C. J., and MOORE, OSTRANDER, HOOKER, CARPENTER, and MCALVAY, JJ.

James H. Pound, for the writ.

PER CURIAM. We are asked to review an order of the circuit court for the county of Wayne denying a mandamus, prayed for by relator and others, compelling the respondent "to execute and enforce all the laws pertaining to the preservation of the Sabbath or the first day of the week at the baseball park of the Detroit Club." The purpose of the proceeding was to prohibit Sunday baseball playing in the city of Detroit. It does not appear that the grievance of the petitioners is any other than that sustained by other citizens of the city of Detroit. Neither does it appear

that the Attorney General of the state has refused to take action in the matter. Under these circumstances, petitioners have no right to relief. The grievance complained of is purely a public grievance, and redress should have been sought by the people's public agents, and not by private intervention. See Russell v. Inspector and Agent of State Prison, 4 Mich. 187; Miller v. Grandy, 13 Mich. 540; People v. Green, 29 Mich. 121; Police Justice v. Board of Suprvs., 38 Mich. 422; Steffes v. Moran, 68 Mich. 291, 36 N. W. 76; Smith v. Saginaw, 81 Mich. 123, 45 N. W. 964. The decision of the circuit court was clearly correct, and we decline to review it in this court.

O'DELL et al. v. GOFF.

(Supreme Court of Michigan. July 13, 1908.) 1. APPEAL AND ERROR-DECISION ON FORMER APPEAL-EFFECT.

A decision on a former appeal that the testimony warranted the submission of an issue to the jury will be followed where the present record does not differ materially from the former record.

Ed, Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4358-4368.] 2. WILLS-INSANE DELUSIONS-QUESTION FOR JURY.

In proceedings to probate a will, evidence considered, and held, that it was for the jury to determine whether testator's belief that his son was illegitimate was an insane delusion.

[Ed. Note. For cases in point, see Cent. Dig vol. 49, Wills, § 768.]

3. JUDGMENT-FOREIGN JUDGMENT - COLLATERAL ATTACK JURISDICTION-STATUTES.

Where the jurisdiction of the court of another state is made to rest upon the sworn statement in the bill of complaint, sworn to by plaintiff that he was a resident of said county and state. a statute of such state making a bill of complaint evidence that the court possessed jurisdiction prescribes a mere rule of evidence for courts of that state, and has no extraterritorial effect; and therefore it may be shown that in this state such court was without jurisdiction, and the decree, therefore, void.

4. EVIDENCE-ADMISSIONS SILENCE.

Where a divorce case was being tried by a court which possessed no jurisdiction by reason of nonresidence of plaintiff, defendant had a right to disregard such proceedings, and her failure to deny a deposition therein, containing what purported to be a copy of a certain confession signed by her, furnishes no evidence that the confession was true.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 779.]

5. WILLS-PROBATE-ISSUES.

In proceedings by a son to contest the will of his father, one of the questions being as to whether testator's belief that contestant was illegitimate was an insane delusion, the chastity of testator's wife-contestant's mother-was in issue, and evidence of her chaste reputation was admissible.

6. EVIDENCE-PRESUMPTIONS-EFFECT.

The presumption of chastity did not prevent a party from introducing affirmative testimony upon such subject, though there was no evidence of lack of chastity.

In proceedings to contest a will, one question being whether testator was a monomaniac on the subject of spiritualism, contestant introduced testimony tending to prove that testator believed that a departed spirit brought and gave him a $5 bill. Held, that the court properly refused to permit proponents' expert witness to explain this circumstance for the purpose of showing that such belief of testator was rational from the standpoint of a spiritualist, where the offered testimony would not have accomplished that purpose, but would only have warranted the jury in disbelieving contestants' witnesses who swore that testator so believed, that not being a proper test of their credibility. 10. TRIAL-INSTRUCTIONS-REQUESTS NER OF GIVING INSTRUCTION.

-MAN

Where proper instructions are requested, they should be given to the jury by the judge, instead of being read by counsel under the direction of the court.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 667.]

11. APPEAL AND ERROR-OBJECTIONS BELOW -NECESSITY.

The fact that requested instructions were read to the jury by counsel under the direction of the court instead of by the court itself, while improper, is not ground for reversal when no objection or exception was taken.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1309.]

12. WILLS

CONTEST-INSTRUCTIONS-Undue INFLUENCE-DECLARATIONS OF TESTATOR.

In proceedings to contest a will, the court properly refused to instruct that "no declarations or statements made by (testator) before or after he made his will can be considered by you as any proof of undue influence, or that he was unduly influenced in making his will"; since, while the declarations of the testator furnished no evidence that others exerted undue influence, they might afford evidence of the effect of said influence upon his will.

Error to Circuit Court, Cass County; Orville W. Coolidge, Judge.

Proceedings by B. O'Dell and others, executors of the will of John F. Goff, deceased, for probate of will. Leslie Goff appeared as contestant. From a judgment denying the probate of the will, proponents appeal. Affirmed.

Argued before GRANT, C. J., and BLAIR, HOOKER, MOORE, CARPENTER, and McALVAY, JJ.

A. Lynn Free (Alfred J. Mills, of counsel). for appellants. Smith & Lyle (Victor M. Gore, of counsel), for appellee.

CARPENTER, J. The purpose of this suit is to probate the will of John F. Goff, deceased. That will gave to contestant, Goff's only son and heir, about $1,800, and bequeathed the balance of the estate of about $41,000 to found a home for spiritualistic mediums. This is the second time the case has been heard in this court. Our first decision will be found reported in volume 149 at page 152, of the Michigan Reports (112 N. W. 736). There we set aside a judgment denying pro bate of the will, and ordered a new trial. It has again been tried, and again a jury has disallowed the will. The proponents insist that the evidence did not justify the trial court in submitting to the jury either of the following questions: (1) Was testator's belief that his son was illegitimate an insane delusion? (2) Was the will the result of undue influence? (3) Was testator a monomaniac upon the subject of spiritualism? We decided on the former hearing that the testimony did warrant the submission to the jury of the second and third of the above questions. We regard that decision as authoritative, for the present record does not differ materially from the former record.

Upon that hearing we also said: "There is evidence that testator's belief in contestant's illegitimacy which influenced the making of the will was produced by spiritualistic communications." It would be fair to say that this falls short of deciding that this belief was an insane delusion, and we shall therefore treat the first of the questions raised by proponent as an open one and deIcide it now. There is no evidence in this case which has any legal tendency to prove testator's son to be illegitimate. Neither is there evidence which has any legal tendency to prove that his mother, Rowena Goff, testator's wife, was unchaste. There is, however, evidence that testator was informed that his wife committed adultery about the time contestant was conceived, and if this were all the testimony on the subject found in this record, we would have no hesitancy in saying that testator's belief that his son was illegitimate was one reached by weighing testimony, and therefore that it was not an insane delusion. But this is not all the testimony contained in the record. There is testimony, which tends to prove that many of, if not all, the reports of his wife's infidelity originated in wicked and false slanders invented by testator himself. There was also testimony that before his son was conceived testator became an investigator of spiritualism, and that still later he became a spiritualistic monomaniac, incapable of reasoning where that subject was concerned. It may also be inferred from his acts and his declarations that many times, and particularly about the time the will was made, he received spiritualistic communications informing him that contestant was not his

son, and the inference may also be drawn that he had such extraordinary confidence in these communications as to be impelled to follow them blindly and implicitly. From this testimony we think the jury should have been permitted, as they were, to draw the inference that testator gave no credit to the information he received tending to prove his wife's infidelity, and that his belief in his son's illegitimacy was not reached by weighing that testimony, but was merely an offspring of his monomania upon the subject of spiritualism. In short, we think that question 1, above stated, was properly submitted to the jury.

In this connection we will consider certain other objections relating to the subject under consideration. Testator obtained a divorce in the state of Indiana from contestant's mother in the year 1856. The trial court proceeded upon the assumption that that court was without jurisdiction, and the decree therefore void. Appellant contends

that this is erroneous, and that the court had jurisdiction. The jurisdiction of the court is made to rest upon the sworn statement in the bill of complaint, sworn to by testator, that "he is now a resident of the said county and state." It is insisted that effect should be given to this statement because a statute of the state of Indiana makes it evidence that the court possessed jurisdiction. We must hold otherwise. The statute of Indiana prescribed a rule of evidence for the courts of that state. It has no effect in this state. See Jones v. Chicago, St. P., M. & O. Ry. Co., 80 Minn. 488, 83 N. W. 446, 49 L. R. A. 640. The undisputed evidence in the case proves that at this time testator resided in Michigan. The Indiana court was therefore without jurisdiction, and the contention under consideration is overruled. People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260. A deposition made by one William P. Bennett and filed in the Indiana case contained what purported to be a copy of a confession of adultery signed by Rowena Goff, contestant's mother. It is urged that, as said Rowena Goff had notice that this deposition was to be taken, her failure to deny the same furnishes evidence that it was true. We think otherwise. The controversy was being tried by a court which possessed no jurisdiction, and she was pursuing a course which she had a lawful right to pursue by paying no attention to the steps that were therein taken. No other can be taken against her, therefore, because she did not present her side of the controversy to that court. Rulings upon the admission and exclusion of testimony: The trial court permitted contestant to introduce testimony tending to prove that Rowena Goff-testator's wife and contestant's mother-bore the reputation of a chaste woman before and during the time she cohabited with testator as his wife. The purpose for which this testimony was intro

duced was to prove the fact of chastity. Proponents' counsel objected to this testimony. We understand and the trial court understood by this objection that it is contended that the method adopted to prove chastity was an improper method (as to this see Harris v. Neal [Mich.] 116 N. W. 535; Wigmore on Evidence, § 1983), but that the fact of chastity was not involved in this suit. We think it was. Contestant could not prevail in his position that testator's belief in his illegitimacy was an insane delusion without convincing the jury that he was in fact his father's son. Involved in this was the question of his mother's chastity. It is true that it would not suffice merely to prove his mother's chastity. He must go further, and prove that testator's belief that his mother lacked chastity was an insane delusion, but nevertheless the fact of chastity was legitimately in issue. To convince the jury that testator's belief of his wife's lack of chastity was an insane delusion, it was necessary to convince them that she was in fact chaste. This does not mean that contestant must introduce affirmative testimony upon this subject. He might choose to rely upon the presumption of chastity which in the absence of testimony would obtain. See People v. Brewer, 27 Mich. 134; Greenman v. O'Riley, 144 Mich. 534. 108 N. W. 421, 115 Am. St. Rep. 466. But his right to introduce such testimony cannot well be denied. It is also true in this case, as heretofore indicated, that there was no evidence of lack of chastity. This does not, however, afford ground for saying that affirmative proof of chastity was inadmissible. It merely proves that it was unnecessary.

Several witnesses were permitted to express the opinion that testator was a monomaniac. It is contended these witnesses did not testify to facts which entitled them to give their opinions. Most of this testimony came in without any exception, and the rulings admitting that testimony we cannot review. The rulings to which exceptions were taken are not open to the objection under consideration. That testimony came from witnesses who did testify to facts which entitled them to give their opinions under the rule in this court. The point was made upon the argument that, when the capacity of a testator is assailed upon the ground that he is a monomaniac, the competency of a nonexpert witness to express an opinion is determined by a different rule than that which is applied when his capacity is assailed upon the ground of general incompetency. We do not feel called upon to pass upon this contention because it was not made in the brief. Nor do we think that it was made in the trial court.

Contestant introduced testimony alluded to in our former opinion tending to prove that testator entertained the belief that a departed spirit brought and gave to him a crisp new $5 bill. Proponents complain because an

expert witness sworn by them was not permitted to explain this circumstance. They contend that this testimony was admissible as tending to prove that the belief of testator under consideration was rational from the standpoint of a spiritualist. We are bound to say from the questions asked, and the colloquy that ensued between counsel and the court, that the excluded testimony would have had no such tendency. It would have only brought into the case a theory of spiritualism which, if believed by the jury, would have justified their discrediting contestant's witnesses who had sworn that testator entertained such belief. We are of the opinion that their credit was not to be tested by that standard, and that the trial court properly excluded the testimony.

Charge and refusal to charge: Each party to this litigation preferred many requests to charge. The learned trial judge marked such of those requests as he thought should be given to the jury, and, instead of himself reading them to the jury or making them a part of his general charge, he directed them to be read, and they were read by the counsel who prepared them. Complaint is made of this practice by proponent's counsel. We are bound to say that the practice is one which should not be resorted to except by consent of counsel or by reason of some exigency not shown to exist in this case. There are a great many reasons why the statement of law which the trial judge gives to the jury for their guidance should proceed directly from him. In that way and only in that way can there be any assurance that every principle of law given them for their guidance receives its due emphasis. We are bound to say, however, that it may be presumed in this case that there was no impropriety in the practice. Counsel did not object nor except to it. The learned trial judge had a right to suppose that the practice met with their approval, and its adoption furnishes no ground for reversing the judgment.

Proponents' counsel preferred 128 requests to charge. Sixty-four of these requests were given. Complaint is made because of his refusal to give the remaining 64. Most of these requests were covered by the requests that were given or by the general charge of the court. Many of them contained an incorrect statement of law. Many of them were argumentative in nature. Some of them emphasized the importance of the testimony of particular witnesses. The court had at least a discretion to refuse to give those requests. See Westchester Fire Ins. Co. v. Earle, 33 Mich. 144. We think these general remarks sufficiently deal with all the complaints of proponents under consideration, save that which arises from their complaint of the trial court's refusal to give the following request: "No declarations or statements made by John Goff before or after he made his will can be considered by you as

any proof of undue influence, or that he was unduly influenced in making his will." The vice of this request lies in the concluding language, "or that he was unduly influenced in making his will." It is unquestionably true (see Zibble v. Zibble, 131 Mich. 655, 92 N. W. 348) that the declarations of John Goff furnished no evidence that others exerted an undue influence, but those declarations might afford evidence of the effect of said influence upon his will. See in this connection In re Townsend's Estate, 122 Iowa, 246, 97 N. W. 1108; Potter v. Baldwin, 133 Mass. 427. It would therefore have been incorrect to charge the jury that those declarations were no proof "that he was unduly influenced in making his will," and it follows that the request under consideration was properly refused.

Argument of counsel: It is contended that there was prejudicial error in the arguments of contestant's counsel. The statement of which most complaint is made and the only statement which we think deserves attention is that relating to the character of Rowena Goff for chastity. It was argued by contestant that her character for chastity was involved in this suit. Proponents contend that that character was not involved. already disposed of this question adversely to proponents' contention. Other complaints of the argument do not merit special attention. Some extravagant statements were made, but nothing brought to our attention by proper exceptions discloses reversible er

ror.

We have

A great many other complaints are made, but of these it may be said that they are disposed of adversely to proponents under the reasoning contained in this opinion, or in the former opinion, or that they are answered by elementary principles of law, or by a proper construction of the record. They involve no question of importance to the profession, and disclose no reversible error.

The judgment is affirmed.

HARRINGTON et al. v. HAMM, Judge of
Probate, et al.

(Supreme Court of Michigan. July 13, 1908.) 1. NEW TRIAL-MISCONDUCT OF JUROR.

While a juror is determining a controversy, he should accept no favors from a party interested therein.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, § 98.] 2. SAME.

In proceedings for the establishment of a drain, the jury, while viewing the land to be. taken. accepted entertainment of and were repeatedly treated to cigars by certain of the petitioners, and while taking their dinner at the home, of one of the petitioners at his expense a woman who was waiting on them said. "The way to a man's heart is through his stomach," and inquired whether they would want stagnant water near their homes. Held, that the conduct was sufficient ground for setting aside the verdict.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, § 98.]

3. SAME-WAIVER OF OBJECTION.

The fact that respondent's counsel did not object to the irregularities at the time they occurred did not operate as a waiver of the objection, where he merely remained silent, and did nothing that indicated his approval or his intent to waive objection.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, New Trial, § 110.]

Error to Circuit Court, Calhoun County; Walter H. North, Judge.

Certiorari by George Harrington and others to review the action of George W. Hamm, judge of probate of Calhoun county and another, in proceedings for the establishment of a drain. From an order of the circuit court denying the writ, relators bring error. Reversed, and proceedings quashed.

Argued before GRANT, C. J., and BLAIR, MOORE, CARPENTER, and McALVAY, JJ. Hatch & Page, for appellants. Winsor & Miller, for appellees.

CARPENTER, J. We are called upon in this case to review proceedings for the establishment of a drain brought before the circuit court by writ of certiorari. Various irregularities are alleged. In our judgment we need consider but one. It appears by the record that the jury who found that the drain was a necessity, and who also assessed damages, while considering their verdict and looking over the lands to be taken, “accepted entertainment of, and were repeatedly treated to cigars by, certain of the petitioners for the drain and who were interested in its construction," and, while said jury were taking their dinner at one of the petitioners, a lady who was waiting on said jury said, "The way to a man's heart is through his stomach," and inquired whether they would want stagnant water near their home. The circuit judge said that "such conduct would justify the setting aside of a verdict of the jury in ordinary proceedings at law, but the conditions surrounding the determination of such a matter as the proceeding in mind is quite different, and it does not seem to me that the court can say that the mere exchange of such courtesies as are indicated in this record unduly influenced the judgment of 12 men whose integrity and standing as citizens was passed upon by the relators' counsel at the time of their selection as jurors." We cannot approve of this reasoning. While a judge or juror is determining a controversy, he should accept no favors from a party interested therein. Such favors are usually extended for the purpose of improperly influencing his judgment, and, if he accepts them and decides in favor of the party extending them, he justly subjects himself to severe criticism. Judicial proceedings will become a mockery if such conduct is tolerated; for every suitor will be encouraged to compete in schemes of corruption. In Detroit, etc., R. Co., v. Campbell, 140 Mich. 384, 103 N. W. 856, a verdict in proceedings instituted by a railroad company to condemn land was set aside for just

such conduct, and we said: "Taking property by virtue of the right of eminent domain is a proceeding that ought to demand quite as careful oversight as the trial of any other case, for it deals with as important interests as any civil cause. * ** We do not know that the jurors were influenced in this case, but we are of the opinion that owners of land should not be subjected to such dangers, or be required to show affirmatively that they have suffered.” Several reasons are urged for saying that the case is not ruled by the Campbell Case. It is said that it was necessary for the jury to get their dinner while they were examining the route of the drain. This is doubtless true; but the slightest forethought would have provided for their obtaining their dinner elsewhere than at the house of one of the petitioners and in some other manner than at his expense.

It is said that relators' counsel should have made an earlier objection to the misconduct of the jurors. The misconduct occurred on the 11th of June, when the jurors were making their view of the proposed drain. Their verdict was filed on the 13th of June. The objections were made on the 14th. They could not well have been made earlier. To sustain the contention in question, we must decide that counsel should have objected to the irregularities at the time they occurred. It might be sufficient to say that it is not to be inferred that certain of these irregularities of a serious nature were observed by counsel at the time they occurred. It is true, however, that he did know of some of them, and perhaps it may be inferred that as to these he did not immediately protest. But it may not be inferred that he did anything which indicated his approval or his intent to waive objections. It may be presumed that he maintained a dignified silence. And this was the proper course to take for a lawyer and a gentleman. And in taking it he did all that was necessary to preserve his client's rights. It is said that he waived his objections because he accompanied the jury when they took dinner at the house of one of the petitioners. Whether this would amount to a waiver of the particular objection, viz., the objection. that the jurors accepted this entertainment, is a point which we are not called upon to determine in this case. It certainly would not amount to a waiver of other objections, viz., that the jurors received other favors from petitioners-objections which require us to vacate the verdict.

The order of the circuit court will be reversed, and the proceedings quashed.

PEOPLE v. NORTH. (Supreme Court of Michigan. July 13, 1908.) CRIMINAL LAW-DIRECTION OF VERDICT-COERCION.

In a prosecution for selling liquor without having first paid the required tax, the trial judge instructed the jury that it was his duty to tell