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Bashara, J. Appellant brought a wrongful death action, MCLA 600.2922; MSA 27A.2922, as personal representative for the estate of the deceased, Ernest Papke. A directed verdict was granted in favor of appellee Mrs. Tribbey. The jury returned a verdict in favor of appellee Mr. Tribbey. Appellant seeks review. On October 20, 1969, the decedent was attacked by a large male goat allegedly owned by or under the control of the appellees. At the time the appellees lived across the road from the deceased. On the day in question the appellees’ two boys, ages nine and six, missed the school bus and were home alone. They let the goat out of its pen. Later, they crossed the street to visit the decedent. The goat jumped the fence and followed the youngsters over to the deceased’s property. At this point the testimony is conflicting. Either the decedent attempted to help the Tribbey boys chase the goat off his property, or he unexplainedly provoked the goat by poking it in the side with his cane. In any event, the goat attacked the deceased and seriously injured him. The decedent was taken to the hospital and treated. On November 22, 1969, he was released from the hospital. He was readmitted to the hospital in February of 1970 and died on March 7, 1970. The cause of the death was seriously disputed at trial. Appellant argues the trial judge erroneously gave the following instruction regarding the liability for personal injury of the owner or custodian of a domestic animal: "Now, I instruct you that where a person owns or has the custody of a domestic animal, such as a goat, and that animal is vicious or has a propensity to cause injury to persons, and the owner or the custodian knows or should know that the animal is vicious or has a propensity to cause injuries to persons, such owner or custodian has a duty to restrain the animal so that it will not harm others. If, in such case, the owner or custodian does not secure the animal so as to restrain it from doing injury to another, he is negligent, and therefore responsible for such injuries. "On the other hand, if the animal escapes by means beyond the control of the owner or custodian, the latter is not responsible for any injury resulting therefrom. ” (Emphasis supplied.) Appellant opines that the owner or custodian of a domestic animal, with knowledge of its vicious propensities, is liable regardless of fault for personal injuries caused by the escaping animal. We agree. In Brooks v Taylor, 65 Mich 208; 31 NW 837 (1887), the Michigan Supreme Court found that a cause of action existed where the plaintiff was gored by a bull. The action was premised on defendant’s keeping the bull with knowledge of its vicious habit of hooking. The Court stated: "It is alleged that he wrongfully and injuriously kept the bull, 'well knowing that the said bull was used and accustomed to attack and gore, wound, and injure mankind.’ The keeping of the bull, with knowledge of his vicious propensities, is a sufficient allegation of negligence, under all the authorities, without any other direct averment of negligence. "Nor is it customary or usual, in any of the forms used and cited in the text-books, or in cases for injuries by mischievous or vicious animals, to allege any want of negligence upon the part of the plaintiff. * * * On the contrary, it has been distinctly and almost uniformly held that it is only necessary to allege the ferocity of the animal and the knowledge of the owner. The negligence consists in keeping such an animal after notice; and whoever keeps an animal accustomed to attack and injure mankind, with knowledge that it is so accustomed, is prima facie liable in an action on the case at the suit of any person attacked and injured by the animal, without any averment of negligence or default in the securing and taking care of it. "If it were proven, as a matter of defense, that the plaintiff wilfully provoked the bull, or was grossly negligent in going near him, with knowledge of his vicious habit of hooking, it would, of course, preclude recovery; but I do not think that a want of negligence upon the part of the plaintiff is necessary to be averred or proven. The gist of the action, according to all the authorities, is the keeping of the dangerous animal with knowledge; and the injury by such an animal is prima facie actionable, without reference to the conduct of the plaintiff.” (Emphasis supplied and citations omitted.) Brooks v Taylor, supra, at pp 210-211. Brooks, supra, states a cause of action exists when one alleges that the owner keeps a vicious animal with knowledge of its vicious propensities, and the animal escapes causing personal injury. It is unnecessary to aver negligence on the part of the owner or keeper in securing and taking care of the animal. It was, therefore, reversible error for the trial judge to instruct the jury that Mr. Trib bey was not responsible for personal injuries caused by the goat if it escaped by means beyond his control. The eminent legal scholar and former Michigan Supreme Court Justice Thomas Cooley in his treatise, Cooley on Torts, cites Brooks v Taylor, supra, for the following propositions: "If it be made to appear that any domestic animal is vicious and accustomed to do hurt, and that the owner has been notified, or has knowledge of the fact, a duty is then imposed upon him to keep the animal secure, and he is responsible for the mischief done by the animal in consequence of the failure to observe this duty. "[I]n a suit for injuries by a vicious animal, the gist of the action is not negligence in keeping the animal, but the keeping him with knowledge of his vicious propensity. According to these authorities one having such knowledge keeps such an animal at his peril and must respond for any damage done by this animal, irrespective of negligence on his part. ’’ (Emphasis supplied.) (Footnotes omitted.) 2 Cooley on Torts (4th ed), § 266, pp 306, 310. Justice Cooley's analysis parallels our view of the holding in Brooks v Taylor, supra. Furthermore, the Court in Brooks v Taylor, supra, at 211, excluded consideration of plaintiffs negligence. Only the defenses of willful provocation or gross negligence would have precluded recovery. This strongly supports our conclusion that the cause of action was not premised on negligence, notwithstanding the Supreme Court’s characterization. The above analysis does not mean the owner or custodian of a domestic animal cannot be held liable on a negligence theory for failing to control or restrain the animal. If the injured party is unable to prove the vicious propensities of the domestic animal and that the owner or custodian knew of such propensities, then the owner’s negligence in controlling or restraining the animal becomes an issue. Barnum v Terpening, 75 Mich 557; 42 NW 967 (1889). Nor do we believe Brooks, supra, is distinguishable on the ground that bulls and goats are not of the same classification. Bulls are generally classified with such domestic animals as cattle, sheep and horses. Prosser on Torts (4th ed), § 76, p 500. Likewise, goats are treated as domestic animals. Lewis v Great Southwest Corp, 473 SW2d 228, 231, (Tex Civ App, 1971), Young v Blaum, 146 So 168, 169 (La App, 1933). See also 4 Am Jur 2d, Animals, § 2, p 251. We hold the owner or custodian of a domestic animal with knowledge of its vicious propensities is liable regardless of fault for personal injuries caused by the escape of the animal. Compare Knowles v Mulder, 74 Mich 202; 41 NW 896 (1889). The evidence could have supported a finding that Mr. Tribbey had knowledge of the vicious propensities of the goat. He admitted being attacked by the goat in an answer to an interrogatory. The answer to the interrogatory was read into evidence. Accordingly, the case must be reversed. Appellant also argues that the trial judge erred in directing a verdict in favor of Mrs. Tribbey. One who owns and controls the premises upon which a domestic animal is kept may be held liable as the custodian of the animal. Jenkinson v Coggins, 123 Mich 7, 8; 81 NW 974 (1900). There was no evidence presented in appellant’s case in chief that Mrs. Tribbey owned and controlled the premises. Appellant suggests that a statement by appellee’s attorney in opening argument that Mrs. Tribbey owned the farm was an admission binding on Mrs. Tribbey. We disagree. Statements made by counsel are not to be considered as evidence. Dalm v Bryant Paper Co, 157 Mich 550, 556; 122 NW 257 (1909). The judgment in favor of Mrs. Tribbey is affirmed, while the judgment for Mr. Tribbey is reversed and remanded for proceedings consistent with this opinion. No costs. That characterization of negligence does not comport with the modern analysis of negligence as conduct unreasonable in view of the risk. Prosser on Torts (4th ed), § 76, p 499. See generally Samson v Saginaw Professional Building Inc, 393 Mich 393; 224 NW2d 843 (1975), Davis v Thornton, 384 Mich 138; 180 NW2d 11 (1970). It may be reasonable to keep domestic animals with vicious propensities for public instruction or entertainment, or for protection of life or valuable property. McNeely, A Footnote on Dangerous Animals, 37 Mich L Rev 1181, 1185. See also 2 Cooley on Torts (4th ed), § 266, pp 310-311. The test is whether the owner or custodian knew or should have known of the vicious propensities of the animal. Knowles v Mulder, 74 Mich 202; 41 NW 896 (1889). In an ambiguous opinion on the theory of liability in Knowles v Mulder, 74 Mich 202; 41 NW 896 (1889), the Court stated the law imposes a duty on the owner or keeper of a domestic animal to secure such animal where the owner or keeper has notice of its vicious propensities. The implication is that if the animal escapes and causes personal injury the owner or keeper is liable without regard to fault. However, in the same sentence the Court stated the injured party can only recover if he is without fault. This would suggest that the cause of action is premised on negligence, because apparently, contributory negligence of the plaintiff would bar recovery. Moreover, the Court attempts to distinguish between domestic animals and domestic animals with dispositions universally regarded as peaceable. But again, the Court would impose a duty on the owner or keeper of the latter class of animals to secure such animals where the owner or keeper has knowledge of its vicious disposition. The language suggests an absolute duty that would give rise to liability without fault should the animal escape and cause personal injury. Notwithstanding this, the Court characterizes the breach of this duty as negligence.

M. J. Kelly, P. J. Defendant was found guilty of delivery of heroin on the testimony of one Thomas Cooper, a paid police informant. While appeal was pending in this Court, remand was ordered on motion of the defendant for an evidentiary hearing to "inquire into the existence or nonexistence of promises of leniency given to witness Thomas Cooper in exchange for his testimony”. The question, of course, is whether or not defendant Mata was convicted on false testimony and thereby denied a fair trial. Giglio v United States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972). The hearing was conducted over several days and testimony was taken from 15 witnesses, including Cooper. On April 11, 1975 the trial court entered an order denying a new trial, "for the reasons stated on the record at the hearing * * * ”. The reasons include the following: "At the outset of this opinion which the court desires to state now, this court will say that Mr. Cooper’s [sic, should be Mr. Mata’s] attorney, at the time of the trial, was given full opportunity to go into this matter. * * # "Now, the court understands, of course, that the appellate court desired further evidence on this particular point, and it is for this reason that the court has conducted this very lengthy and exhaustive inquiry into all of the circumstances surrounding Mr. Cooper’s previous charges, all of the attorneys who represented him on any of the charges, all of the police officers who had any contact with Mr. Cooper, all of the members of the prosecuting attorney’s office who had anything whatever to do with any of Mr. Cooper’s cases and, finally, we had Mr. Cooper back here again, subject to vigorous cross-examination by the attorney now representing Carlos Mata. "The court has been unable to find any evidence that the prosecutors promised him leniency if he would testify in the case. None of the attorneys representing Mr. Mata on the various charges against him stated that they had promises or assurances of leniency. "There is testimony by Mr. Cooper that he hoped to receive leniency * * * . [T]hat he had received no promises of leniency, but that he hoped that he would receive leniency * * * . "Now there has been testimony from Mr. Stark, who was a former member of the prosecuting attorney’s office, that he understood that Mr. Cooper would be given special treatment because of his work in behalf of the vice squad in obtaining evidence in narcotics cases. Mr. Stark went further and testified that in some of the cases which he handled, he tried to work out deals which would not have Mr. Cooper confined to jail. "Mr. Thick, a former prosecuting attorney in Saginaw County, testified that he heard Mr. Sturtz and Mr. Meter discuss somé of the cases, at least two of the cases, in which Mr. Cooper was involved. Mr. Thick testified that he overheard Mr. Sturtz saying that Mr. Cooper had kept his part of the bargain and that it was up to the prosecutor to carry out their part of the bargain. * * * [T]he bargain he was talking about was the normal plea bargain by which a defendant is permitted to plead to one charge and have the other charges against him dismissed. "The court, therefore, is compelled to conclude from the evidence in this case that there did not exist any actual promises of leniency.” The narrow question before this Court is whether or not the trial judge clearly erred in concluding that no promises of leniency were made to Thomas Cooper for his testimony. We cannot say from a review of the record, including the evidentiary hearing, that the trial judge erred. The strongest argument presented by appellant is an after-the-fact argument. The assistant prosecutor who tried the case was named Thomas. Mr. Thomas was not called on to testify at the evidentiary hearing. There is no need to speculate about why he was not called. He was not called because at trial he strongly asserted that no promises had been made to witness Cooper by the prosecutor or any assistant prosecutor. Five months after Mata’s conviction, Mr. Thomas was the prosecutor in a breaking and entering case against Cooper wherein Cooper pled guilty on July 19, 1974 and received two years probation. Defendant urges there is a strong implication that probation was promised Cooper prior to or at the time of defendant’s trial. Obviously his suspicions are not without foundation. However the inference or implication is rebutted by the sworn testimony taken at the evidentiary hearing. The question here is not favored treatment. There is absolutely no question but that Cooper received extremely tender handling by the authorities. It may be he earned it. It may be odoriferous from an idealistic prosecutorial or law enforcement point of view. The question is whether a promise of leniency had been made to him at the time of his testimony in January of 1974. We affirm the trial court’s conclusion that it had not. This whole tempest is a rehash of what occurred at trial. The court gave defendant’s trial attorney wide latitude and he used it all. The trial judge allowed him to show the manner in which the witness had been able to avoid prosecution in the past, allowed him to go into arrests and allowed him to cross-examine on all pending charges, in- eluding in some cases the identity of the actual victims of crimes with which Cooper had been charged but not convicted. The trial attorney’s closing argument was a scathing denunciation of Cooper and very adequately done. His ammunition included two pending breaking and entering charges, four arrests for "writing bad checks”, arrests for possession of heroin, LSD and marijuana (all previously reduced or dismissed) and the interesting fact that his own father had signed complaints against him. All in all, the jury had a wide-angle perspective. The issue was very clearly drawn as to Cooper’s credibility. In spite of his besmirched character the jury chose to believe him and it had a right to do so. Affirmed.

McGregor, P. J. Defendant, Raymond Gallagher, was convicted by a jury of the offense of receiving and concealing stolen property (MCLA 750.535; MSA 28.803), and subsequently sentenced to a term of 1 to 5 years in prison. He now appeals as a matter of right. On June 3, 1973, two Southgate police officers stopped the defendant while he was towing a late model Cadillac southbound on 1-75. The Cadillac initially attracted the officers’ attention because, although it appeared to be in good condition, most of its exterior sheet metal had been removed. After stopping the defendant, the officers further observed that the vehicle identification number had been removed from the dash assembly. The officers then asked the defendant to produce proof of ownership or a bill of sale, but he was unable to do so. As a result, defendant was arrested and charged with receiving and concealing stolen property. At trial, the prosecution presented evidence which showed that the Cadillac had been stolen on May 19, 1973, approximately two weeks before the defendant’s arrest. The people’s evidence also tended to show that the defendant was in the business of salvaging and rebuilding automobiles, and that he had been so employed for at least several years prior to the offense. The defendant first contends that MCLA 750.535; MSA 28.803, the statute under which he was convicted, is unconstitutional in that it violates defendant’s privilege against self-incrimination. Section 2 of that act provides: "(2) Any person being a dealer in or collector of any merchandise or personal property, or the agent, employee, or representative of a dealer or collector who fails to make reasonable inquiry that the person selling or delivering any stolen, embezzled, or converted property to him has a legal right to do so, or who buys or receives any such property which has a registration, serial, or other identifying number altered or obliterated on any external surface thereof, shall be presumed to have bought or received such property knowing it to have been stolen, embezzled, or converted. This presumption may be rebutted by proof. ” (Emphasis added.) The defendant, in arguing that this section violates his privilege against self-incrimination, relies primarily upon our Court’s decision in People v Serra, 55 Mich App 514; 223 NW2d 28 (1974). In Serra, the Court stated: "But the presumption in this case is unique in that the actual state of mind of the accused is involved. "Most presumptions which have been considered by courts have involved inferences from one fact about a certain object or relation to another, more remote, fact about that same object or relation. For example, in People v Kayne, 286 Mich 571; 282 NW 248 (1938), the Supreme Court sustained a presumption written into a local ordinance. It provided that display of a registration plate on a motor vehicle parked illegally constituted prima facie evidence that the owner of the vehicle parked it. The Court held that such a presumption did not violate the defendant’s privilege against self-incrimination. The presumption in Kayne involved an inference from one fact about the car (that it had a certain registration number) to another fact about the car (that its owner parked it illegally). Significantly, the presumption in Kayne did not involve an inference from a fact about the car to a fact about the owner’s intent (e.g., that he intended to park it illegally). "It is this feature of the presumption in question which requires us to give it different treatment. It involves an inference from the fact of possession to the fact of the possessors’ intent, rather than some fact which can be shown independent of the defendants’ state of mind. The only evidence which can effectively rebut such an inference, supported and enhanced by the presumption, is the defendants’ own testimony as to their intent. Any other evidence, even expert testimony, is mere speculation about that intent. Probabilities established by an expert are only suggestions. "We are not persuaded by the argument that the defendants can choose not to take the stand to testify. The choice offered defendants is an empty one. It hqs been nullified by the heavy hand of a Legislature which imposes a penalty, in the form of a statutory presumption on those who decide to exercise their constitutional right to remain silent.” Although the Serra court specifically limited its holding to the facts before it and declined to extend the above analysis to similar presumptions, we cannot conceive of any rational basis upon which the presumption in the present case can be meaningfully distinguished from the presumption present in Serra. Both involve an inference from the fact of possession to the accused’s state of mind, and both inevitably have the same effect on the defendant’s decision to remain silent and on the jury’s verdict when the defendant does not take the stand. The plaintiff concedes as much, but argues that the self-incrimination issue raised in Serra was wrongly decided and that its rationale should be abandoned. Reluctantly, we are constrained to agree. While we can see the distinction between those presumptions which infer an actor’s state of mind and those which merely infer some other fact, we cannot, however, perceive any difference which would make the former unconstitutional but not the latter. The Serra court distinguished "state of mind” presumptions from other presumptions on the basis that a mental state can be effectively rebutted only by the defendant’s own testimony, while the other presumptions can be effectively rebutted by other types of evidence. Different constitutional treatment of presumptions based on this distinction, we believe, is unwarranted. First of all, there are essentially two ways to rebut any presumption, be it a "state of mind” or a "fact” presumption. The most effective way is to offer evidence which undermines the basic facts upon which the presumption is based. Thus, under the statute before us, a defendant could, even without taking the stand, offer evidence which showed either (1) that he was not a dealer or collector of the property in question, (2) that the property was not stolen property, (3) that he did not buy or receive such property, (4) that the property in question has no serial number on any external surface, or (5) that the serial number was not altered or obliterated. If evidence is presented by the defendant which would show any of the above, the presumption could effectively be rebutted. The other method of rebutting the presumption is to show that although the basic facts necessary for its application are present, the jury should nevertheless not make the inference that the presumption allows in the case before them. Thus, under the statute present in the instant case, the defendant could also show, again without taking the stand, (1) that the property in question does not normally have a serial number, (2) that the property in question is usually bought and sold second-hand, with the serial numbers altered or obliterated, (3) that there were other serial numbers plainly visible on the external surfaces which were not altered or obliterated, (4) that the defendant has interposed a valid defense such as intoxication or incapacity, or (5) that the defendant had no knowledge that the property in question was marked with a serial number or that the serial number was altered or obliterated. Again, if any of the above were shown, the presumption would be effectively rebutted. Although several of these rebuttal methods, particularly the last, could certainly be better presented if the defendant himself took the stand, all nevertheless are susceptible to being shown by other types of evidence. In this respect, "state of mind” presumptions do not differ significantly from "fact” presumptions. For example, the pre sumption in People v Kayne, 286 Mich 571; 282 NW 248 (1938), which makes display of a registration plate on a motor vehicle parked illegally prima facie evidence that the owner of the vehicle parked it, can clearly be more effectively rebutted if the owner of a vehicle takes the stand and testifies than if he attempts to rebut the presumption by relying solely on other proof. Consequently, there would be the same kind of pressure put on the defendant to testify when faced with a "fact” presumption as there is when he is faced with a "state of mind” presumption. Since the difference, if any, is only one of degree, we cannot see how this distinction can furnish the basis for holding one unconstitutional but not the other. Furthermore, the Serra opinion assumes that the defendant faced with a "fact” presumption can always offer other types of evidence and therefore avoid having to take the stand himself to rebut the presumption. However, in many cases, such a defendant will not have the other types of evidence available to him and, consequently, he will usually have to take the stand to effectively rebut the presumption. Again, using the Kayne presumption as an example, it is evident that in some if not most cases, the defendant will have no method of evidence available to him other than taking the stand himself and denying that he parked his vehicle in the illegal spot. Under these circumstances, the compulsion to testify would be as great, if not greater, than if the defendant had been faced with a "state of mind” presumption. This would certainly be the case where the defendant has other types of evidence available to him which would tend to rebut the "state of mind” presumption. Factors such as these further illustrate that the test of constitutionality cannot be predicated upon the "state of mind — fact” distinction advanced in Serra. Moreover, the United States Supreme Court has on several occasions held that "state of mind” presumptions do not infringe on an accused’s privilege against self-incrimination. In Yee Hem v United States, 268 US 178; 45 S Ct 470; 69 L Ed 904 (1925), the Court held that a statutory provision, which provided that possession of opium is presumptive evidence of an intention unlawfully to conceal it with knowledge of its unlawful importation, does not unconstitutionally require the defendant to be a witness against himself. There, it was stated: "The point that the practical effect of the statute creating the presumption is to compel the accused person to be a witness against himself may be put aside with slight discussion. The statute compels nothing. It does no more than to make possession of the prohibited article prima facie evidence of guilt. It leaves the accused entirely free to testify or not as he chooses. If the accused happens to be the only repository of the facts necessary to negative the presumption arising from his possession, that is a misfortune which the statute under review does not create but which is inherent in the case. The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there, as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.” 268 US at 185. In Turner v United States, 396 US 398; 90 S Ct 642; 24 L Ed 2d 610 (1970), the Court upheld the constitutionality of instructing the jury that it may infer from possession of heroin that the defendant knew that it had been illegally imported. Likewise, in Barnes v United States, 412 US 837; 93 S Ct 2357; 37 L Ed 2d 380 (1973), the Court upheld the constitutionality of an instruction which told the jury that they could infer from the unexplained possession of recently stolen mail that the defendant possessed the mail with the knowledge that it was stolen. There, the Court stated at pp 846-847: "Petitioner also argues that the permissive inference in question infringes his privilege against self-incrimination. The Court has twice rejected this argument, Turner v United States, 396 US at 417-418 [90 S Ct 642; 24 L Ed 2d 610 (1970)]; Yee Hem v United States, 268 US 178, 185; 45 S Ct 470; 69 L Ed 2d 904 (1925), and we find no reason to re-examine the issue at length. The trial court specifically instructed the jury that petitioner had a constitutional right not to take the witness stand and that possession could be satisfactorily explained by evidence independent of petitioner’s testimony. Introduction of any evidence, direct or circumstantial, tending to implicate the defendant in the alleged crime increases the pressure on him to testify. The mere massing of evidence against a defendant cannot be regarded as a violation of his privilege against self-incrimination. Yee Hem v United States, supra, at 185.” While it is true that Michigan courts can impose stricter constitutional standards than does the United States Supreme Court, our above analysis convinces us that the "state of mind — fact” distinction set forth in Serra does not provide a logical basis upon which to impose stricter standards against self-incrimination. In fact, the only rational method we can see which would provide such stricter standards would be the complete elimination of all presumptions. This method has been suggested and deserves serious consideration. See Turner v United States, supra, (dissenting opinion). However, being an intermediate appellate court, we are bound by the pronouncements of our Supreme Court. Since our Supreme Court has held, in People v Kayne, supra, that presumptions do not violate a defendant’s privilege against self-incrimination, we cannot hold otherwise. We, therefore, reject defendant’s contention that MCLA 750.535(2), is unconstitutional as being violative of defendant’s privilege against self-incrimination. The defendant’s two remaining assignments of error are but extensions of the first. He claims that the trial court’s reading of the above quoted statute to the jury and the prosecutor’s reference in closing argument to the presumption contained therein both operated to deprive him of the effective implementation of his privilege against self-incrimination. We disagree. While the trial court should more properly have given the jury a clearer instruction concerning presumption than that which a reading of the statute provided, we hold, based on our previous discussion, that the reading of the statute did not result in reversible error. Since we have held the statute to be constitutional, the defendant cannot complain if the jury is made aware of the presumption contained therein. Furthermore, any inadequacies contained in the language of the statute were sufficiently remedied by the trial court’s subsequent detailed instructions concerning the burden of proof, the presumption of innocence, and the defendant’s right not to testify on his own behalf. Thus, we conclude that the instruction given did not violate the defendant’s privilege against self-incrimination. Likewise, we also hold that the prosecutor’s reference to the presumption did not constitute unfair comment on the defendant’s failure to take the stand. The prosecutor was arguing basically that, since there was no evidence presented to rebut the presumption, the jury should apply the presumption in determining the defendant’s guilt. As noted above, the defendant cannot complain if the jury is made aware of the existence of the presumption. Moreover, a prosecutor can in his closing argument comment to the jury to the effect that the facts shown were uncontradicted. See People v Jacoboni, 34 Mich App 84; 190 NW2d 720 (1971). Consequently, we can find no reversible error resulting from the prosecutor’s closing argument in the instant case. Affirmed. Allen, J., concurred. Defendant also argues that the statute is unconstitutional on 14th Amendment grounds. However, defendant fails to argue the issue at all in the body of his brief or to present any authority. It is well settled that this Court will not discuss an issue where a party has failed to brief, present authority, or present policy reasons in substantiation of the issue. Failure to support the issue raised constitutes abandonment. See People v St. Onge, 63 Mich App 16; 233 NW2d 874 (1975). Although Serra was concerned with the accused’s intent while the present case is concerned with the accused’s knowledge, both presumptions deal directly with proving the requisite mental state that the accused must possess in order to be convicted of the crime. As such, Serra should not be distinguishable on this ground. Plaintiff does not quarrel with the Serra court’s analysis of the due process issue therein raised. Neither do we. As a result, we do not upset the Serra Court’s holding that the 2-ounce presumption was unconstitutional on 14th Amendment grounds.

M. J. Kelly, P. J. Defendant-appellant was charged with and pled guilty to armed robbery, MCLA 750.529; MSA 28.797. He was sentenced to 20 to 40 years and it is the minimum sentence which is the central issue on this appeal. Defendant claimed he was wrongfully induced to plead guilty to the crime charged by a promise conveyed to him by his attorney that the prosecutor would recommend a minimum sentence of 10 years. On December 14, 1973, an evidentiary hearing was held in the trial court on defendant’s motion to vacate sentence. The plea and sentence were affirmed. Defendant appeals of right. We reverse. There is good reason to believe that the defendant relied on the representation that the prosecutor would recommend a minimum sentence of 10 years incarceration. Due process requires that any doubt as to whether or not defendant’s reliance was reasonable must be resolved in favor of defendant. People v Byrd, 12 Mich App 186, 230; 162 NW2d 777 (1968) (concurring opinion of Levin, J.). See also, People v Gray, 29 Mich App 301, 304; 185 NW2d 123 (1970) (concurring opinion of Levin, J.). Our decision is not grounded on the theory that defendant’s plea was induced by an unkept promise of the prosecutor. We say only that: "[T]he plea followed a mistaken statement by the defendant’s attorney that a concession had been arranged with the * * * prosecutor, without regard to whether the * * * prosecutor led the attorney to make the statement.” People v Byrd, supra, at p 226, fn 56 (citations omitted). We follow the test recommended by Justice Levin in his Byrd opinion for reviewing such claims: "[T]he test should not be whether the defendant establishes the truth of his claim by a preponderance of the evidence. Rather, his claim should be deemed established, and the plea set aside, if the evidence causes the judge to entertain a reasonable doubt whether the plea was 'encouraged’ by a false promise of leniency in sentencing. Under a reasonable doubt standard, the court need not wholly adopt the defendant’s story, or wholly reject the attorney’s story. He may simply conclude that, on the evidence, he is in doubt, and, the defendant being entitled to the benefit of that doubt, he will set aside the plea and allow the defendant to stand trial.” 12 Mich App 229-230. (Fn omitted.) The record convinces us the defense attorney (counsel on appeal was not the trial attorney) had the impression that he had been told by the prosecutor’s office that the prosecutor would recommend a ten-year minimum. He equivocated at the hearing below as to how strongly he characterized the recommendation in his conversations with the defendant, but there is convincing evidence that he was bargaining about minimum sentence. This is not to say that the bargaining was clearly mutual, or to imply any criticism of the prosecutor or any member of his staff. The defense attorney undoubtedly read more into the bargaining sessions than was warranted. Nor do we say that the defendant’s testimony, which was unequivocally that he relied on the promise conveyed by his attorney of a guaranteed minimum ten, was anything but self-serving. The defense attorney had told defendant that sentence was all that he had to bargain about; that he had to plead "on the nose” because the prosecutor would not take a plea to a lesser offense. Defense counsel testified that he had focused entirely on the question of minimum sentencing. He filed an affidavit in which he flatly stated that he had told appellant that the prosecutor would recommend a ten-year minimum. His testimony corroborated the affidavit in part and contradicted it in part. He also testified that he "believed” that he told appellant he had no control over what the judge’s ultimate sentence would be. However this is not a sentence issue. It is a recommendation issue. This is not a question of whether or not the judge exercised his discretion to disregard the prosecutor’s recommendation. This is a question of whether or not the appellant relied on promises made to him to the effect that the prosecutor would recommend a ten-year minimum. On the basis of the entire transcript, the affidavits and the inferences drawn from both, it is our opinion that the defendant was told that the prosecutor would recommend a ten-year minimum, that he relied upon that representation; but the recommendation was, in fact, for a 20-year minimum, which recommendation was adopted by the trial court and the defendant sentenced thereon. One other aspect of this proceeding should be mentioned. We observe that defense counsel’s testimony was somewhat ambivalent. He offered the explanation that this had been his first time in Washtenaw County and "things are humming a little different in Wayne County * * * ”. We draw an inference from that explanation. The inference is that he thought he made some sort of a shortcut plea agreement which would have been sufficient for reliance in Wayne County. There would, of course, be the further requirement that it be sub rosa in view of the colloquy at the plea taking, wherein defendant testified no promises were made. Defendant corroborates this surmise (again, of course, it is self-serving) by testifying that the plea taking was a pro forma charade, designed only to make a perfect record to satisfy an obscure purpose. The inference drawn may be incorrect. If it is correct, however, such a shortcut is worthy of condemnation. We remind counsel that when a sentencing recommendation is an element of a plea bargain it must be recorded. GCR 1963, 785.7(2) applies to all 83 counties including Washtenaw and Wayne. Reversed.

Per Curiam. Defendant was found guilty of assault with intent to commit murder, MCLA 750.83; MSA 28.278, following a two-day trial in Detroit Recorder’s Court. He appeals his convic tion, arguing that the trial court should have instructed the jury to treat with caution the uncorroborated testimony of an addict-informant; that the trial court had a duty to issue a sua sponte alibi instruction once a pretrial notice of alibi was given; and that the prosecutor’s questioning of a rebuttal witness was prejudicial. The assault allegedly took place in the early morning hours of June 12, 1972, near the Bamboo Bar at 12th Street and Pingree. Complainant, Wiley Reed, approached defendant’s car, expecting to receive a delivery of cocaine. Instead he received a shotgun blast in the face, certainly a mind expanding experience of a different nature than expected. While being transported to the hospital, the complainant allegedly gave police descriptions of his assailant and the assailant’s vehicle. The descriptions fairly accurately depicted defendant and defendant’s car. Defendant was arrested, arraigned, and brought to trial. At the trial, the major witness offered by the prosecution was the complainant, a one time heroin and cocaine addict, but on methadone for the two years prior to the trial. He testified that he had taken both heroin and cocaine within eight hours prior to the assault. He testified that he had received money from the Detroit Police for expenses in other trials. In light of these facts, defense counsel asked the trial judge on three occasions to instruct the jury that the testimony of an admitted narcotic addict and paid informer is to be treated with caution. Defense counsel cited United States v Griffin, 382 F2d 823 (CA 6, 1967), for the proposition that a judge must give such an instruction. " 'Careful instructions’, under the exceptional circum stances presented herein, demanded a charge as to the jury’s evaluation and use of the testimony of the addicted informer. Its absence herein worked substantial prejudice to the defendant.” 382 F2d 823, 829. (Footnote omitted.) Our Court has considered similar arguments before. People v Atkins, 47 Mich App 558; 209 NW2d 735 (1973), lv granted 391 Mich 766 (1974), People v Martin, 53 Mich App 321; 220 NW2d 186 (1974). In Atkins, the defendant had not sought any special instruction below, but argued on appeal that the court had a duty to issue, sua sponte, an instruction that the testimony of an addict informer was to be received with extreme caution. In Martin, the defendant sought, at the trial court, an instruction that "a drug addict is inherently a perjurer”. In both cases, this Court refused to order the instructions. The rationale for refusing the instructions was stated in Martin: "The courts of this state have never recognized the view that there is some testimony which is suspect as a matter of law.” 53 Mich App 321, 323. Atkins and Martin are dispositive of this issue. Based on the current decisional law of Michigan, the trial court did not err in refusing to give the cautionary instruction requested. Defendant’s second issue on appeal is the failure of the trial judge to, sua sponte, instruct on alibi in view of the fact that defendant had given timely notice of alibi and presented a supposed alibi witness. Defendant did not object to the failure to give an alibi instruction, nor did defendant request an alibi instruction. Failure to give an unrequested alibi instruction is not reversible error, so long as the court gives a proper instruction on the elements of the offense and the requirement that the prosecutor prove each element beyond a reasonable doubt. People v Burden, 395 Mich 462; 236 NW2d 505 (1975). Although alibi was noticed, there was very little, if any, alibi evidence for the jury to consider. The jury was adequately instructed that the people had the burden of proving each element of the offense charged beyond a reasonable doubt which, a fortiori, included the element that the defendant was present and committed the offense charged. Defendant next argues that the trial court erred in not directing a verdict of acquittal on the basis that there was insufficient evidence to connect defendant with the crime charged. Defendant’s contention is without merit. There was ample evidence justifying submission of the case to the jury. Defendant next argues that the verdict was against the great weight of the evidence. The proper standard of proof in a criminal case is not whether the finding of guilt was against the great weight of the evidence, but rather whether there was sufficient evidence to warrant a finding of guilt beyond a reasonable doubt. People v Washington, 4 Mich App 453; 145 NW2d 292 (1966), People v James, 32 Mich App 278; 188 NW2d 164 (1971), People v Bersine, 48 Mich App 295; 210 NW2d 501 (1973). This Court on review does not substitute its judgment for that of the triers of fact who heard the testimony of the witnesses and observed their demeanor. People v Casper, 25 Mich App 1; 180 NW2d 906 (1970). Accordingly, the verdict will not be disturbed unless the evidence fails to support the finding of fact. People v Person, 20 Mich App 246; 174 NW2d 67 (1969). The record in the instant case contains sufficient evidence, if believed, to warrant a finding of guilty beyond a reasonable doubt. Defendant’s final assignment of error is that the prosecution’s questions of the complainant when testifying as a rebuttal witness were improper and prejudicial, denying defendant a fair trial. The prosecutor asked the complainant if he knew certain notorious narcotic figures and if he had seen defendant at their house. This line of questioning was permissible on rebuttal because defendant had denied ever seeing the witness in the past. The questions and answers were relevant to confirm the witness’s identification of his assailant by testimony of prior acquaintanceship. The trial court did not abuse its discretion in permitting such testimony. Defendant also seeks reversal because of alleged improper questions asked by the prosecutor relative to prior attempts on the life of the complainant and whether there was ever a contract placed on his life. The questions were improper but do not mandate reversal. This Court, in People v Hooper, 50 Mich App 186; 212 NW2d 786 (1973), made the following observation: "The first claim of prosecutorial misconduct is asking his witnesses questions which elicited inadmissible and misleading testimony. The primary complaint is that the prosecution asked leading and suggestive questions. A review of the record reveals that the prosecutor did ask several leading questions during the examination of witnesses. However, this Court does not believe a case should be reversed merely because a few technically improper questions are asked. In fact, it is hard to find a trial where every question is exactly proper. In order to require a reversal some prejudice or patterns of eliciting inadmissible testimony must be shown. Neither of these are supported by the record in the instant case. Each time a technically improper question was asked, it was either withdrawn by the prosecution or the prosecution rephrased the question in proper form. We cannot discern a pattern of eliciting inadmissible testimony in the instant case. Furthermore, we cannot find any prejudice to the defendant by the few improper questions that were asked.” 50 Mich App 186, 196. These observations apply with equal force to the present case. Affirmed.

T. M. Burns, J. This appeal concerns the accrual of a cause of action for breach of warranty. Plaintiffs Bernard and Lois Cartmell brought this action to recover for breach of an express warranty. In 1958, plaintiffs purchased a new home from defendant. The home contained a tile roof for which the following lifetime express warranty was provided by defendant: "The tile is warranted to be free from all defects in manufacture, and the roof is warranted against leaks due to failure of tile or its installation for the life of the building; losses resulting from acts of God or violence are excluded from this warranty.” In 1960, plaintiffs observed damage to their ceiling, apparently caused by leaks in the roof, and unsuccessfully attempted to repair the roof. In 1969, plaintiffs informed defendant of the leakage and asked that the roof be repaired. Plaintiffs received no response. In 1974, after being advised that their roof was improperly installed, plaintiffs initiated this action against defendant for breach of warranty. At the commencement of the trial in district court, defendant moved for summary judgment alleging that the six-year statute of limitations had run. This motion was denied. Plaintiff admitted at trial that the roof had leaked since 1960. Relying upon this, defendant moved for a directed verdict, urging that the statute of limitations had begun to run in 1960. The district court judge denied this motion, concluding that the question concerning when the plaintiffs discovered or should have discovered the breach of warranty was a factual one for the jury to decide. Having this issue submitted to it, the jury returned a verdict for the plaintiffs. Defendant appealed the district court judge’s denial of its motion for a directed verdict to the circuit court. The circuit court affirmed the trial court’s judgment. Defendant sought leave to appeal, which we granted. The technical issue before us is whether the circuit court erred in affirming the trial court’s denial of defendant’s motion for a directed verdict. The crux of the matter is whether the date upon which a cause of action for breach of express warranty accrues is a question of law for the court to determine or one of fact for the trier of fact. The statute of limitations begins to run when plaintiffs action accrues. A claim for breach of warranty accrues when the breach is discovered or reasonably should have been discovered. MCLA 600.5833; MSA 27A.5833. Defendant contends that plaintiffs discovered the breach in 1960, that the cause of action accrued then, that the six years had thus run by the time this suit was commenced, and that the trial court should have directed a verdict in its favor. Plaintiff argues that the discovery of leaks in 1960 is not tantamount to discovery that the roof was improperly installed and that the latter discovery was not made until 1974. Plaintiffs argued, and the district and circuit courts agreed, that the question of when the breach was discovered or should have been discovered, was a question of fact for the jury to decide. Both of the lower courts relied for their decisions upon our opinion in Weeks v Slavik Builders, Inc, 24 Mich App 621; 180 NW2d 503 (1970), aff’d, 384 Mich 257; 181 NW2d 271 (1970). The Weeks case was very similar to the one at bar, but any reliance upon it as controlling in the instant case is unwarranted. In Weeks, defendant made attempts to fix the roof but failed to stop the leakage. We held that the statute of limitations was tolled by defendant’s efforts to repair and for a time thereafter until plaintiffs had a reasonable opportunity to determine that the repairs were not sufficient. In the instant case there were no such attempts to repair which would stop the running of the statute. Despite the factual differences between this case and Weeks, we find no reason to reverse the decisions of the courts below. Reviewing the facts of this case, there is no basis for concluding absolutely that the cause of action accrued in 1960. Plaintiffs testified that they were aware of leaks in 1960. But for there to have been sufficient knowledge for the cause of action to accrue the plaintiffs would have had to have known or should have known that there were leaks that were caused by a failure of the tile or its installation. Knowing that there are leaks and knowing that there are leaks caused by faulty material or workmanship in the roof are two different things. Plaintiffs may have suspected that the leaks were the fault of the defendant, but they did not know this until 1974. Of course, whether plaintiffs should have known of the breach earlier is another question. At what time the breach "reasonably should have been discovered” is properly a question to be decided by the trier of fact. In Cree Coaches, Inc v Panel Suppliers, Inc, 23 Mich App 67; 178 NW2d 101 (1970), we held that the time at which a breach of warranty is discovered or should reasonably have been discovered is a question for the trier of fact. In affirming that decision in part, however, our Supreme Court decided that the above holding was obiter dicta and should not be regarded as an authoritative adjudication of that issue. Cree Coaches, Inc v Panel Suppliers, Inc, 384 Mich 646; 186 NW2d 335 (1971). Searching elsewhere for authority, we find that MCLA 600.5833; MSA 27A.5833 has been interpreted by a Federal court as it was by this Court in Cree Coaches, supra, i.e., that a factual question exists regarding when a plaintiff discovered or should have discovered a breach of warranty. Crocker v McCabe-Powers Auto Body Co, 321 F Supp 1154 (ED Mich 1970). While not relying on Cree Coaches or Crocker, we think that such interpretation of the statute is correct. Where there is an issue concerning reasonable diligence in discovering a breach of warranty, a question of fact arises unless reasonable minds could not differ on the conclusion. In the instant case, we cannot say that the trial court erred in submitting the question to the jury. Affirmed. McGregor, P. J. concurred. Cf. Cunningham v Frontier Lumber Co, 245 SW 270 (Tex Civ App, 1922). The warranty in the case at bar is not against leaks; it is against "leaks due to failure of tile or its installation”. MCLA 600.5833; MSA 27A.5833. Cf. Hoeflich v William S. Merrell Co, 288 F Supp 659 (ED Pa, 1968).

R. B. Burns, J. Plaintiff filed suit in Wayne County Circuit Court against the defendants. Defendant Murphy, who is a resident of the State of New York, filed a motion to dismiss the complaint against him for lack of jurisdiction. The trial judge denied his motion and he appealed to this Court by leave. We affirm. Defendant Murphy was a manufacturer’s representative for plaintiff. He serviced the Revere Copper and Brass Works in Rome, New York. All of his orders were placed by telephone or by mail. Plaintiff alleges that Murphy breached his duties owed to plaintiff by representing defendant Siefen Compounds, Inc., which was in direct competition with the plaintiff. Plaintiff further alleges that Murphy engaged in fraudulent activities in misrepresenting plaintiff’s status at Revere and by interfering with plaintiff’s advantageous relationship with Revere. The Supreme Court in Sifers v Horen, 385 Mich 195; 188 NW2d 623 (1971), stated that the statute represented an attempt by the Legislature to expand to its full potential limited personal jurisdiction of Michigan courts over nonresidents. MCLA 600.705; MSA 27A.705. The statute uses the phrase: "The transaction of any business within the state”. In McGraw v Matthaei, 340 F Supp 162 (ED Mich, 1972), Judge Kaess, Chief Judge for the Eastern District of Michigan, Southern Division, stated on page 164: "Defendant has placed great emphasis on the fact that he was not physically present in the state when he executed the note. This court is of the opinion that one need not be physically present in the state to 'transact business within the state.’ "Modern technology has taken us far beyond the point where twa men must stand in each other’s physical presence to transact business. Widespread use of the telephone and the mails make actual physical presence unnecessary in many cases.” Judge, now Justice, Fitzgerald in Kiefer v May, 46 Mich App 566, 572; 208 NW2d 539, 542 (1973), stated: "The telephone and the mails were utilized to consummate the contract between plaintiff and defendant. Thus, as interpreted in McGraw, the defendant was 'present’ in Michigan.” In our opinion, Carroll Murphy did transact business in the State of Michigan. Affirmed. Costs to plaintiff.

Per Curiam. Defendant was charged with breaking and entering an unoccupied dwelling house with intent to commit larceny therein, contrary to MCLA 750.110; MSA 28.305, and assault with intent to commit murder, contrary to MCLA 750.83; MSA 28.278. He pled guilty on June 28, 1974, to the breaking and entering charge, but that plea was vacated on July 15, 1974, upon motion of the prosecutor. A bench trial was held on December 16, 1974, and defendant was found guilty of both of the originally charged crimes. The judge imposed concurrent prison terms of 10 to 15 years and 30 to 45 years upon defendant, respectively. At the guilty plea proceedings, defense counsel represented to the court that the plea was the result of a bargain between the defendant and the prosecutor’s office, and that the assault with intent to murder charge would be dropped pursuant to the plea agreement. The assistant prosecutor stated that he was not informed of the exact details of the plea agreement. The following exchange occurred before the plea was accepted: "Mr. Mazer [Defense Counsel]: * * * he desires at this time to ask the court to permit him to waive his constitutional rights and to plead guilty to that specific charge. The condition being plea bargaining, it was agreed that the charge of assault with any intent to murder would be dismissed at a proper time. "The Court: Let me say first, I don’t know the facts and circumstances of this case except what counsel told me over the bench here in open court hearings. "Mr. Dixson, is everything that Mr. Mazer said here true? "Defendant Dixson: Yes, it is. "The Court: You do want to plead guilty to the crime of breaking and entering an occupied dwelling? "Defendant Dixson: Yes. "The Court: And you have heard his statement as to the plea bargain proposed here? "Defendant Dixson: Yes. "The Court: Is that your understanding of the whole bargain? "Defendant Dixson: Yes. "The Court: Is that the whole bargain, Mr. Jones? "Mr. Jones [Assistant Prosecutor]: That is my understanding of it, your Honor. The specific nature of it is based on my conversations with Mr. Mazer and I am also informed by my office that, in fact, there is bargaining. No one informed me of the details of it when I came up here this morning, I am sorry to say, but I haven’t any doubt to dispute that is what it is. "The Court: All right. Mr. Dixson, whose idea is it that you plead guilty? "Defendant Dixson: It is my idea, your Honor. "The Court: Other than the plea bargain made here, has anyone made you any promises to get you to plead guilty? "Defendant Dixson: No.” The trial judge then completed the plea-taking proceedings and accepted the guilty plea. The county prosecutor subsequently moved to vacate the guilty plea before sentencing on grounds that the plea agreement had been incorrectly stated. He indicated that the prosecutor’s office had never agreed to drop the assault charge. Defense counsel conceded that there had in fact been no final plea agreement: "Mr. Rostash [Prosecutor]: Yes, your Honor. In this matter, the defendant appeared before this court and pled guilty to the charge of breaking and entering an occupied dwelling. There is another charge pending of assault with intent to murder arising out of the same facts and circumstances as the first charge of burglary. "At the time of the plea, I believe there was a misunderstanding by Mr. Mazer that there was a plea bargain involved. This was a misunderstanding; that is correct; and there was no plea bargain involved. It had been discussed along these lines, but the plea bargain that was mentioned was that if the plea were accepted on the burglary charge in File No. 15276 that the charge of assault with intent to murder, File No. 15436 would be nolle prossed or at least the people would file a petition requesting same. This is not the case. "The Court: You mean that plea bargain was not discussed? "Mr. Rostash: That plea bargain was discussed but there was never an agreement arrived at. "The Court: All right. "Mr. Mazer: May it please the court, my name is John Mazer and the defendant is present here in court and the prosecutor is correct with regard to his statement maybe that there was a misunderstanding as I was of the opinion that we had arrived at an understanding. That is not the fact and actually was not the truth and I explained to the defendant that the plea bargain that we attempted to go into was incomplete and hadn’t been actually consummated; in other words, that there was no real agreement with regard to plea bargaining.” However, defense counsel indicated that defendant did not want to withdraw his plea of guilty even under those circumstances: "He understands that and his statement to this Court will be that regardless of whether the plea bargain was complete or incomplete, he understands that the prosecutor intends, possibly intends to go ahead with the second charge. Regardless of that fact, he desires to have his original plea, which this court took, to the charge of breaking and entering an occupied home, which carries up to a possible 15 years imprisonment; that he understands that he could get up to 15 years. Regardless of all of that he desires to have this court accept the original plea that was entered into and whatever time the sentence date is set up, that this court go ahead and set up your proper sentence date and he desires to be sentenced on that particular charge. "But he understands that there was a mistake, there was a misunderstanding and regardless of all of those facts relating to plea bargaining, he still wants his original plea to breaking and entering into an occupied home [to] stand on this record, and is asking the court to accept that.” The trial judge refused to allow the original guilty plea to stand because it was based on a false statement of the plea bargain. The court vacated the plea. Defendant was convicted of both counts at a bench trial. At that trial, it was brought out that defendant and an accomplice had broken into a house owned by Constance Harvell. Soon thereafter, Constance Harvell arrived home to discover a strange car in her driveway. She blocked the car with her own vehicle because she thought someone was vandalizing her home. Defendant and his companion emerged from the house, shot Constance Harvell twice, and drove away. They were apprehended after an extensive police chase. Defendant contends on appeal that he should not have been brought to trial on the assault charge. He first argues that the assistant prosecutor had the authority to, and in fact did, enter into a binding plea proceeding. Pursuant to that agreement, the defendant was entitled to a nolle prosequi of the assault charge. Alternatively, defendant argues that even if the plea bargain was never completed, he had the absolute right to plead guilty to the breaking and entering offense. In that case, he claims that double jeopardy bars a subsequent trial on the assault charge, as it arose out of the same transaction. We reject both of those arguments. We cannot accept defendant’s argument that the prosecutor’s office is bound by the terms of the plea "agreement” set forth by defense counsel at the guilty plea proceeding. Only if the prosecutor "affirmatively acknowledges” a plea agreement, as provided in GCR 1963, 785.7(2), does public policy demand that the people be held to its terms. Here, the assistant prosecutor quite specifically stated that he did not know the details of the plea agreement, if any agreement was actually reached. Reliance was placed on defense counsel’s recitation of the bargain. We cannot allow the defendant to take advantage of an inaccurate statement of the bargain by his attorney when the prosecutor never "affirmatively acknowledged” the same for the record. We do agree with defendant that the trial judge improperly vacated the accepted guilty plea to the breaking and entering charge against the wishes of defendant. The recent guilty plea case, Guilty Plea Cases, 395 Mich 96, 127; 235 NW2d 132 (1975), indicates that the original plea is valid even if there is an inaccurate or incomplete recitation of the agreement on the record, unless the true bargain cannot be fulfilled. Here, the trial judge initially took the proper course by holding a second hearing. Guilty Plea Cases indicates that a hearing supplemental to the original plea proceeding should be held to determine the content of a plea agreement which has not been "affirmatively acknowledged” on the record. However, after it was determined that there were no further terms to the bargain, the defendant should have been allowed to stand upon his original plea of guilty. Although the defendant’s original guilty plea was valid, we do not accept the contention that the principles of double jeopardy bar prosecution of the assault charge. We have previously held in People v Goans, 59 Mich App 294; 229 NW2d 422 (1975), that a defendant waives the protection of the double jeopardy clause when he offers a plea with another charge pending and full awareness that the prosecutor intends to proceed on that other charge. Those circumstances were not present at the original plea proceeding, but defendant expressed a clear desire to stand upon his original plea despite knowledge that the prosecutor planned to proceed on the assault charge. We hold that the defendant thereby waived any double jeopardy claims with respect to the assault charge. Defendant raised one further issue which does not merit discussion. We vacate the conviction and sentence imposed by the trial judge in No. 24187, and remand the cause to the guilty plea judge. The guilty plea judge shall reinstate the plea of guilty to the breaking and entering charge, and impose a sentence upon defendant for the same. We affirm the conviction and sentence imposed by the trial judge in No. 24188, the assault charge. GCR 1963, 786.7(6)(b), formerly 785.7(4). Unlike the situation in Guilty Plea Cases, where the bargain was not completely stated, the agreement here was inaccurately stated on the record. Therefore, if defendant in fact had wished to withdraw his plea pursuant to GCR 1963, 785.7(6), we think it would have been an abuse of discretion for the trial judge to prevent the same. We have determined that we can properly sever this portion of the conviction and sentence even though defendant was charged with both offenses at trial. Since a bench trial was involved, we must assume that the judge considered only evidence relevant to the assault in finding defendant had committed the same. Additionally, evidence of both the assault and the breaking and entering are admissible as part of the res gestae. Consequently, the trial judge would have the same evidence in front of him in a separate trial for asasault. Finally, defendant’s conviction upon a plea of guilty to the breaking and entering charge would have been available to the trial judge as part of the presentence report upon a separate trial.

D. E. Holbrook, Jr., P. J. As a result of apparent plea bargaining defendant pled guilty to the offense of unarmed robbery, MCLA 750.530; MSA 28.798. While a plea bargain was placed upon the record it was acknowledged only by the defendant and his counsel; no representative of the prosecuting attorney’s office being present. The nature of the plea agreement as ascertained from reviewing the plea-taking transcript was that in return for defendant’s plea of guilty to unarmed robbery the original charge of armed robbery together with all other charges pending against defendant in the Recorders Court for the City of Detroit would be dismissed. The plea-taking transcript clearly reveals that there were in fact other charges pending against the defendant in said court. On appeal the people argue that the defendant merely bargained away a possible life sentence in return for a sentence carrying a 15-year maximum and should not now be heard to complain. This is the totality of the prosecutor’s understanding of the plea agreement as determined from his brief, his copy of a pretrial statement and his oral argument on appeal. Based on the foregoing it is apparent that the prosecutor’s understanding of the plea agreement is far different than the agreement which was placed on the record and verbally acknowledged by the defendant and his counsel. In fact, the agreement as stated by the prosecutor is far more restrictive than the agreement set forth in the record. GCR 1963, 785.7(2) requires that any plea bargain between the prosecutor and the defendant be placed upon the record and "affirmatively acknowledged by the defendant, his lawyer, and the prosecutor”. (Emphasis supplied.) Not only was the court rule not complied with but the prosecutor’s absence from the plea taking rendered it impossible to be complied with. In People v Head, 67 Mich App 678; 242 NW2d 485 (1976), a panel of this Court, in analyzing Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975) (People v Crowder), said: "As we read Crowder, supra, we believe that the Supreme Court’s primary concern was in knowing what the plea bargain was and if it had been fulfilled. Although there is no allegation in this case that the plea bargain was not fulfilled since the plea agreement was not affirmatively acknowledged * * * we remand this case to the trial court to determine what the plea bargain was and if it has been fulfilled.” Because of the obvious inconsistency between what the prosecutor now claims the bargain to have been and what actually appears on the written record, not only is it impossible to determine what the plea bargain was but it is likewise impossible to ascertain if the agreement was fulfilled. We therefore remand this case to the trial court to determine the nature of the bargain and whether it was fulfilled. The trial court shall hold an evidentiary hearing, within 30 days of the release of this opinion, to determine what the plea bargain was and whether it has been fulfilled. The trial court shall make its findings of fact which shall be transmitted together with the transcript of the hearing to this Court within 15 days of the hearing. Each party shall have 20 days thereafter to file such supplementary briefs as the party desires. We retain jurisdiction. Remanded.

J. H. Gillis, P. J. In August, 1974, we reversed defendant’s first-degree murder conviction because the trial judge refused to instruct the jury on the possible lesser included offenses of first-degree murder. People v Smith, 55 Mich App 184; 222 NW2d 172 (1974). Subsequent to our decision, the Michigan Supreme Court set aside defendant’s first-degree murder conviction and ordered entry of a judgment of conviction for second-degree murder. People v Archie Smith, 396 Mich 825 (1976). The case was then remanded to this Court for "consideration of defendant’s untreated assignments of error”. Defendant first contends that police officers violated his Fourth Amendment rights by engaging in a warrantless search of his apartment. Defendant shared the living quarters with his grandmother and cousin. The grandmother voluntarily turned her own gun over to the police, and the cousin voluntarily turned over clothes, located in her own bedroom, to the police. The record indicates that these actions were totally voluntary, despite the fact that the two women were not informed that they had a right to refuse the police officers’ request. Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973). The radio seized from the apartment was in plain view. Defendant also argues that reversal is required because of the trial judge’s failure to sua sponte give a limiting instruction in regard to foundation evidence introduced in an attempt to admit defendant’s grandmother’s gun into evidence. We disagree. The trial judge ultimately decided not to admit the gun into evidence; this choice is a matter of his discretion. However, the fact that the gun was ruled inadmissible does not necessarily mean that any testimony concerning the gun was prejudicial. In the instant case, the fact that the gun was similar to the murder weapon arguably was sufficient evidence to have allowed its admission into evidence, People v Kelly, 386 Mich 330; 192 NW2d 494 (1971), especially in light of the fact that the jury would have been free to disregard the grandmother’s testimony that defendant had no access to it. People v Fuller, 395 Mich 451; 236 NW2d 58 (1975). If defendant wished a "curative” instruction, he should have requested it. Cf. People v Stinson, 58 Mich App 243, 255-256; 227 NW2d 303 (1975). The trial court is free to instruct the jury concerning defendant’s decision not to testify, absent a request by defendant that the instruction not be given. People v Hampton, 394 Mich 437; 231 NW2d 654 (1975). Defendant made no such request, we find no error. Any error in regard to the absence of counsel at defendant’s sentencing is rendered moot by the Supreme Court’s decision to have defendant resentenced. This case is remanded to the trial court in accordance with the Supreme Court order. As to the allegations of error, here considered, we affirm. Judge Elliott did not participate in the remand.

G. W. Britten, J. Plaintiff, denied workmen’s compensation benefits by both the hearing referee and the Workmen’s Compensation Appeal Board, asks this Court to rule that he is entitled to compensation for injuries suffered in an automobile accident of August 2, 1970. We decline plaintiff’s invitation to extend an employer’s liability for travel-related injuries and we affirm the administrative decisions below. Plaintiff was a cook employed by defendant, a concessionaire at Detroit area race tracks. When first hired as a full time employee at the Hazel Park race track, located five minutes from his house, plaintiff received a $165 per week salary. His overtime pay averaged $25 per week. When the Hazel Park racing season closed, defendant asked plaintiff to work at its Northville Downs restaurant for the 60-day racing season there. Plaintiff, reluctant to undertake the 50-mile round trip without an increase in pay and convinced that his labors were worth more than $190 per week, negotiated a new salary of $225 per week. Although no sum was specifically allotted as recompense for the increased travel burden, testimony indicated that the increased salary was at least partially attributable to the increased commuting distance. On August 1, 1970, plaintiff worked exceptionally long hours, from noon until 1 a.m. of the next day. During the day, in addition to his regular duties, he prepared food, some donated by defendant, for a race track employees party that was to be held off the premises of the employer in the early morning hours of August 2. Defendant gave its permission to use company trays and tableware for serving the food at the festivities, and indicated that, if plaintiff were to attend the party, he was to look after defendant’s equipment. Plaintiff attended the community party, arriving at 1 a.m. Plaintiff cleaned the equipment and made sure that it was loaded in a car for return to defendant. Plaintiff left the party at 3 a.m. for the 25-mile drive home. Plaintiff fell asleep at the wheel, ran into a highway abutment, and suffered extensive injuries. He sought, and was denied, workmen’s compensation. Plaintiff advances three theories of eligibility for workmen’s compensation: (1) because plaintiff received extra compensation for the increased commuting distance, his highway travel was part of his work and hence his injury arose out of and was in the course of employment; (2) because plaintiff was furthering his employer’s interests and was performing a special overtime assignment in attending the community party, his subsequent homeward trip must be considered as arising out of and in the course of employment; and (3) the lengthy working day, combined with the attendance at and participation in the community party, markedly increased the plaintiff’s fatigue, making the trip home more hazardous, and that the increased hazard arose out of and was in the course of employment. We must approach these three theories with a preliminary recognition of the well-settled principle that injuries sustained while going to and from work are not compensable. E.g., Dent v Ford Motor Co, 275 Mich 39; 265 NW 518 (1936). However, as was pointed out in Stark v L K Myers Co, 58 Mich App 439, 442-443; 228 NW2d 411 (1975): "This general rule however has been repeatedly riddled with exceptions to the extent that it seems to have become an exception to the exceptions. From this consequent erosion of the general rule, it would appear that there is arising through evolution a new rule which compensates where 'there is a sufficient nexus between the employment and the injury’ so that it may be said that the injury 'was a circumstance of the employment’.” (Citations omitted.) The Stark opinion listed four variables to consider in assessing the "sufficiency of the nexus”: "1. Whether employer paid for or furnished employee transportation, * * * . "2. Whether the injury occurred during or between working hours, * * * . "3. Whether the employer derived a special benefit from the employee’s activities at the time of the injury, * * * "4. Whether the employment subjected the employee to excessive exposure to traffic risks, * * * (Citations omitted.) 58 Mich App 439, 443. With these variables in mind, we turn to plaintiff’s first theory of recovery. There is authority in Michigan for the proposition that injuries incurred while travelling are compensable when the employee is given a travel allowance. Lemanski v Frimberger Co, 31 Mich App 285; 187 NW2d 498 (1971). We find the legal analysis in the Lemanski opinion quite sparse and we are hesitant to rely on it without some further thought. The Lemanski Court merely ratified the determination of the Workmen’s Compensation Appeal Board that an employee receiving a ten-cents-per-mile travel allowance was within the course of employment. The Court, apparently concluding that review was limited because the question was a factual one, cited with approval an excerpt from the appeal board opinion: " 'Defendant’s position is that this is merely a going to and from work situation and therefore excluded from coverage. This board does not agree. The payment of mileage pursuant to agreement is obviously intended to cover a special situation entailing more than a mere trip between home and shop and is a recognition that this employment has placed demands outside the ordinary on plaintiff in order to fulfill the requirements of his job for defendant, that highway travel is a necessary and routine part of the work assigned.’ ” 31 Mich App 285, 286. In the present case, the majority of the appeal board apparently concluded that plaintiff was not paid a specific sum for mileage, but was given a salary increase partially because of the increased inconvenience of travel. As the nature of this travel allowance is much different than that in Lemanski, we need not rely on Lemanski. We are compelled to analyze the competing policies on the issue of compensation for commuting injuries when the employee has received a salary increase that is at least partially attributable to increased travel time. Other than Lemanski, there do not seem to be any Michigan cases close to this issue. A number of cases have awarded compensation for travel accidents where the employer has provided the employee’s transportation rather than a cash transfer for travel. Konopka v Jackson County Road Comm, 270 Mich 174; 258 NW 429 (1935), and Chrysler v Blue Arrow Transport Lines 295 Mich 606; 295 NW 331 (1940), do not involve a travel allowance but concern instead an express or implied undertaking by the employer to provide transportation. As was stated in Chrysler: "While generally speaking, normal traffic hazards encountered while traveling to and from the place of work are deemed to be risks common to all and are not connected with the employment status, industry must bear the loss from injuries sustained from such common risks when the task subjects the worker to 'excessive exposure to the common risk’ * * * . In the case before us, travel itself was the employment, imposing abnormal risk of travel mishaps, not only while driving a loaded truck but in returning to the starting point of a journey after the allowed free time.” (Emphasis added.) (Citations omitted.) 295 Mich 606, 609. We do not find Lemanski or the provision of transportation cases controlling in our consideration of the particular question plaintiff poses. Where the employer provides a vehicle, guarantees transportation, reimburses identifiable travel expenses, or provides an identifiable sum for travel time, it is probable that the employer has contracted for the employee’s travel and that, as the Chrysler case notes, the travel itself is employment. However, where the employer merely gives a salary increase to an employee to induce him to work at a more distant job site, there is a lesser probability that the employer has contracted for travel. The defendant in this case simply made the position more attractive financially by increasing the salary. The employer received no benefit from the employee’s travel other than the benefit all employers receive by their employees’ presence at work. The plaintiff was a cook, not a travelling salesman, a truck driver, or a journeyman worker moving from site to site. His employment at Northville for two months is of sufficient duration to remove his case from one of the possible bases for the Lemanski decision, for, unlike Lemanski, the plaintiffs position did not require extraordinary travelling because of turnover in job sites. We do not believe that plaintiffs increased salary can be attributed to the employer’s contracting for the plaintiffs travel. The employer had no control over, nor particular desire for, plaintiffs travel. The extra money paid merely amounts to additional compensation necessary to attract plaintiffs services, rather than a special arrangement for travel expenses. Because there was no special arrangement for travel expenses or wages, and because the travel was of no particular benefit to the employer, plaintiffs first theory fails. Plaintiffs second theory of recovery is more easily dismissed. Assuming, without deciding, that plaintiff was furthering his employer’s interests while attending the race track community festivities, this task ended when the party ended. Had plaintiff been injured while attending the party, or while returning the employer’s trays and silverware, we would face different questions. Had the plaintiff been required to commute to and from home solely to attend this social function, we would again face a different question. In the present case, we have only a delay in the plaintiffs trip home. The nature of the commutation was not changed by plaintiffs attendance at the party. He was merely driving home from overtime work; the fact of working overtime does not by itself warrant compensation. See Phillips v Fitzhugh Motor Co, 330 Mich 183; 46 NW2d 922 (1951), and Lyons v Ford Motor Co, 330 Mich 684; 48 NW2d 154 (1951). Plaintiff’s final theory of recovery is that the employer’s requirement of 13 hours of regular work and the plaintiffs attendance at the social event, where alcohol was consumed, combined to increase substantially the hazards of travel. Because the employment created hazardous travel, the injury on the trip home is argued to arise out of and be in the course of employment. There are Michigan cases that hold an employer liable for an employee’s travel injuries if the employer’s business subjects the employee to extraordinary travel hazards. E.g, Howard v Detroit, 377 Mich 102; 139 NW2d 677 (1966). In Howard, a bus driver working a split shift was injured in an accident while en route from his home to the terminal to commence the second swing. The Court awarded compensation because the split shifts exposed the employee to more than the ordinary number of commutes and because the employee had not finished his day’s work. These factors are not found here — the defendant did not expose plaintiff to an excessive number of commutations, for the plaintiff still faced only one drive home. Moreover, as we have noted, plaintiffs working day ended with the completion of the party, if not sooner. Unlike Howard, the plaintiff did not remain on the job. All that defendant required of plaintiff was overtime work; we do not believe that this amount of overtime work was so great as to increase substantially plaintiff’s fatigue. The employee was not required to attend the party, nor to imbibe while there. The Workmen’s Compensation Appeal Board’s determination that there was no additional risk in driving home at a later hour is affirmed. Plaintiff is not entitled to workmen’s compensation. We affirm. No costs, a public question being involved. R. M. Maher, J. did not participate. A Workmen’s Compensation Appeal Board determination that auto accident injuries arose out of and were in the course of employment is not, as Lemanski v Frimberger Co, 31 Mich App 285; 187 NW2d 498 (1971), might suggest, determinative. Board findings of fact are binding, but a decision that an employee receiving travel allowances is entitled to compensation for travel injuries is not a factual finding. In this case, that decision of entitlement is the ultimate conclusion. As such, it is clearly reviewable by this Court. See Howard v Detroit, 377 Mich 103, 105-106; 139 NW2d 677 (1966). There were three opinions filed by the three board members — two denying compensation and one in favor. The dissenter clearly concluded that travel was compensated. The opinions of the two majority members are somewhat ambiguous on this point. Our readings of their opinions and the transcript of the hearing suggest that the raise in salary upon the move in operations to Northville Downs was partially to induce plaintiff to travel the extra distance and partially attributable to merit. In Stark v L E Myers Co, 58 Mich App 439, 442-443; 228 NW2d 411 (1975), compensation was denied an employee injured in a traffic accident who faced a longer commutation than the present plaintiff and whose job involved frequent changes in job sites. However, Stark does not involve the particular element of an alleged travel allowance. Stark’s relevance in considering present plaintiff’s eligibility for compensation under plaintiff’s first theory is limited to its holding that an employer receives no particular benefits from an employee’s long commutes to frequently changing job sites. This observation is useful in assessing whether or not the present plaintiff was in fact in the employ of defendant while driving to and from work. The observation is relevant in our consideration of the significance of the raise in salary. Accord, Watkins v Cowenhoven, 90 NJ Super 17; 216 A2d 15 (1965). See also, Barney v Industrial Comm, 29 Utah 2d 179; 506 P2d 1271 (1973). For examples of travel that is of special benefit to the employer, see Soncrant v Soncrant, Inc, 59 Mich App 287; 229 NW2d 419 (1975), and Thomas v Certified Refrigeration, Inc, 392 Mich 623; 221 NW2d 378 (1974). Unlike Hicks v General Motors Corp, 66 Mich App 39; 238 NW2d 194 (1975), there is no claim here that the employer’s location, by itself, was particularly hazardous or necessarily required an unusually hazardous trip home. Plaintiff worked 13 regular hours and attended the party for two hours. His normal working day was eight hours. Plaintiff therefore worked overtime of either five or seven hours, depending on the treatment given the social event. In either case, we do not view this as likely to cause a hazardous trip home. But see Van Devander v Heller Electric Co, 132 US App DC 40; 405 F2d 1108 (1968), where a divided court used an overtime fatigue analysis to reinstate compensation for injuries incurred by an employee who fell asleep while driving home. The employee in that case had worked 26 straight hours, with his duties including the installation of heavy electrical equipment. The Court there, as we do here, relied on the examiner’s assessment of the increased risks incident to the particular overtime work required.

Bronson, J. Plaintiff, Theodore A. Brown, appeals on leave granted from a decision of the Workmen’s Compensation Appeal Board. He specifically challenges the imposition of two statutory limitations on the amount of compensation awarded to him: (1) limiting plaintiff to retroactive benefits dating only two years back from the date plaintiff filed his claim, pursuant to MCLA 412.15; MSA 17.165; and (2) reducing current payments starting at age 65 pursuant to MCLA 412.9(g); MSA 17.159(g). On October 17, 1972, the hearing referee found that Mr. Brown had been permanently and totally disabled as a result of pneumoconiosis caused by conditions in defendant’s foundry, where plaintiff had worked for 21 years. On the last day of work, December 31, 1966, plaintiff was 62 years old. Plaintiff notified his employer in a timely fashion, but the employer never reported the injury to the compensation commission. A claim was finally filed by plaintiff on August 23, 1971. MCLA 412.15; MSA 17.165 sets up various time limitations for workmen’s compensation claims: "No proceedings for compensation for an injury under this act shall be maintained, unless a notice of the injury shall have been given to the employer within 3 months after the happening thereof, and unless the claim for compensation with respect to such injury, which claim may be either oral or in writing, shall have been made within 6 months after the occurrence of the same * * * . "In all cases in which the employer has been given notice of the happening of the injury, or has notice or knowledge of the happening of said accident within 3 months after the happening of the same, and fails, neglects or refuses to report said injury to the compensation commission as required by the provisions of this act, the statute of limitations shall not run against the claim of the injured employee or his dependents, or in favor of either said employer or his insurer, until a report of said injury shall have been died with the compensation commission. "Whenever weekly payments are due an injured employee under this act, such payments shall not be made for any period of time earlier than 2 years immediately preceding the date on which the employee filed notice of application for hearing and adjustment of claim with the department.” (Emphasis added.) The Michigan courts have long held that an employer’s failure to report the injury, as indicated in the underscored statutory language, invokes the sanction of a tolling of the statute of limitations. See, Norris v Chrysler Corp, 391 Mich 469, 475; 216 NW2d 783 (1974), Martin v White Pine Copper Co, 378 Mich 37, 43; 142 NW2d 681 (1966). Plaintiff wishes us now to impose the additional sanction of precluding the employer from asserting the two-year-back limitation. We refuse to do so. We hold that the only sanction for failure to notify the Workmen’s Compensation Department is the tolling of the statute of limitations. We think that the statutory language is clear and unambiguous. The second paragraph was added by amendment in 1965, and the Legislature could have expressly imposed the sanction proposed by plaintiff here. They did not do so, nor has our Supreme Court done so in any case. A fair reading of the statute would indicate that it imposes a duty upon the employee to timely file his claim as a quid pro quo for the imposition of the duty upon the employer to report the injury to the department. We will not read the suggested limitations into that statutory duty. Plaintiffs second claim is that MCLA 412.9(g); MSA 17.159(g), as interpreted by the courts of this state, violates the equal protection clauses of both the Michigan and United States Constitutions. Defendant agrees, but argues that the prior cases need not be followed, and that a reasonable interpretation consistent with the principles of equal protection can be found. We think that the statute is clear and unambiguous, and does violate a worker’s right to equal protection of the law. In 1965, the Michigan Legislature first enacted a provision reducing benefits for an injured worker after he reached the age of 65, MCLA 412.9(g); MSA 17.159(g). That section of the statute provided as follows: "When an employee who is receiving weekly payments or is entitled to weekly payments reaches the age of 65, the weekly payments for each year following his sixty-fifth birthday shall be reduced by 5% of the weekly payment paid or payable at age 65, but not to less than 50% of the weekly benefit paid or payable at age 65; so that on his seventy-fifth birthday the weekly payments shall have been reduced by 50%; after which there shall be no further reduction for the duration of the employee’s life. In no case shall weekly payments be reduced below the minimum weekly benefit as provided in this act.” (Emphasis added.) The language in the underscored portion of the statute is quite clear. It does not apply to a person injured subsequent to his sixty-fifth birthday, for that person is not "receiving” or "entitled” to receive benefits at the time he reaches the age of 65. That reading of the statute was sustained in Welch v Westran Corp, 45 Mich App 1; 205 NW2d 828 (1973), aff'd by equally divided court on other grounds, 395 Mich 169; 235 NW2d 545 (1975). While it is true that we will choose a constitutional reading of a statute over an unconstitutional one, that rule has application only where the language is ambiguous. In 1968, the statute was amended to read as defendant wishes it had read prior to that time— the reduction of benefits formula was applied to a person entitled to benefits who " * * * reaches or has reached or passed the age of 65 * * * ”, MCLA 418.357; MSA 17.237 (357). In Cruz v Chevrolet Grey Iron Division of General Motors Corp. 53 Mich App 472; 220 NW2d 178 (1974), leave granted, 392 Mich 808 (1974), this Court sustained that new version of the statute against a claim that it violated a worker’s right to equal protection. However, this author expressly distinguished the situation where the age on the date of injury is controlling, as in the 1965-1968 version of the statute. We now hold that the earlier version does violate the principles of equal protection. The benefits paid through workmen’s compensation are to be viewed at least in part as compensation for wage loss. As we indicated in Cruz, it is perfectly reasonable for the Legislature to decrease benefits starting at the age of 65, when a worker’s level of compensation often decreases due to retirement or other reasons. However, under the 1965-1968 version of the statute, a workman injured at the age of 64 has his benefits reduced by 50% by the age of 75, while there is no reduction whatsoever in the benefits paid to a person injured at age 65. Such a classification lacks a rational basis. It is true that the very fact that a person over 65 is working when injured rebuts the assumption that he will retire at that age. However, such evidence would serve only as a rational basis for initially treating these two classes of persons differently. It is not. reasonable to further assume that a person working at the age of 65 will never retire, so as to justify continuation of full benefits until his death, whether death occurs at age 65 or age 100. Consequently, we hold that the reduction provision in effect from 1965 to 1968 arbitrarily and unreasonably discriminates against workers solely on the basis of age, and cannot be properly applied to workers injured during that time period, including plaintiff. Reversed and remanded for actions not inconsistent with this opinion. Now, as amended, MCLA 418.381(1) and (2); MSA 17.237(381[1] and [2]). Now, as amended, MCLA 418.357; MSA 17.237(357).

Bashara, J. Appellants appeal from a summary judgment granted to the appellees in an action to compel the Wayne County Board of Commissioners to provide the necessary funds to enable the Wayne County Sheriff to continue road patrol service. The appellants are six organized townships and one charter township in Wayne County. The Sheriffs department has for some time provided road patrol service to these townships. Appellants allege that the road patrol consists of approximately 28 deputies. In Wayne County’s fiscal year of 1973-74, which runs through November 30, 1974, the Board of Commissioners funded the road patrol up to August 31, 1974. The board announced that it might discontinue funding the road patrol service after that date. The Wayne County Sheriff responded by indicating that should the board discontinue funding the patrol, he would have to terminate road patrol service. On August 29, 1974 the board allocated funds to the road patrol through the end of the fiscal year. For the fiscal year 1974-75 the board appropriated sufficient funds for the road patrol to operate at the 28-man level up to February 1, 1975. After that date the commissioners authorized a 25% reduction in manpower, unless the appellants contributed to the cost of operation of the road patrol. On January 21, 1975 the . appellants filed an amended complaint alleging it was the statutory duty of the Board of Commissioners to fund the road patrol and it could not demand the appellants contribute to the cost of operation of the road patrol. They alleged further that the 28-man road patrol was totally inadequate and an absolute minimum of 40 men were required to supply the necessary amount of police protection. On March 27, 1975 the trial judge granted appellee Wayne County Board of Commissioners’ motion for summary judgment on the ground that appellants failed to state a claim upon which relief could be granted, because there was no duty of the sheriff to supply a road patrol. GCR 1963, 117.2(1). We agree. It is not disputed that law enforcement for the protection of the safety and welfare of citizens is one of the paramount duties of the state or that the state can delegate that duty , to the counties. A county, however, possesses only those powers that have been conferred upon it by the Constitution and statutes. Const 1963, art 7, § 8, Mosier v Wayne County Board of Auditors, 295 Mich 27, 29; 294 NW 85 (1940), Bond v Cowan, 272 Mich 296, 298; 261 NW 331 (1935). The state has constitutionally delegated the duty of law enforcement to the county by providing for the office of sheriff. Const 1963, art 7, §4. Statutory provisions authorize county charters to provide for the election of sheriffs. MCLA 45.514(c); MSA 5.302(14)(c). The office of sheriff is a constitutional office with duties and powers provided by law. Const 1963, art 7, § 4, Labor Mediation Board v Tuscola County Sheriff, 25 Mich App 159, 162; 181 NW2d 44 (1970). When officers are named in the Constitution they have a kno.wn legal character. The Legislature may vary the duties of a constitutional office, but it may not change the duties so as to destroy the power to perform the duties of the office. Allor v Board of Auditors of County of Wayne, 43 Mich 76, 102-103; 4 NW 492 (1880). See Murfree, Law of Sheriffs, § 41, p 22. We proceed to analyze the duties of the sheriff. MCLA 45.407; MSA 5.917, provides: "It is hereby provided that this act shall be so construed as to require the sheriff, under-sheriff and deputy sheriffs to perform all reasonable services within the jurisdiction of their offices for which the county may be liable and to serve and execute all civil writs and processes that may be reasonably served and executed by said officers under salary.” (Emphasis supplied.) We construe the provision "reasonable service” to mean the sheriff must perform the duties of the office of sheriff as recognized at common law as well as those statutory duties which do not destroy the sheriff’s power to perform the duties of the office at common law. Michigan’s most authoritative case on the duties of the sheriff at common law is White v East Saginaw, 43 Mich 567, 570; 6 NW 86 (1880). That case quoted approvingly from People v Edwards, 9 Cal 286 (1858). " '[T]he duties of sheriff, as such, relate to the execution of the orders, judgments, and process of the courts; the preservation of the peace; the arrest and detention of persons charged with the commission of a public offense; the service of papers in actions, and the like; they are more or less directly connected with the ad ministration of justice; they have no relation to the collection of revenue.’ ” In Scougale v Sweet, 124 Mich 311; 82 NW 1061 (1900), the Court recognized that the sheriff could not shut his eyes to crime and had a duty to respond to prevent a breach of the peace of which he had notice. The Court stated that it was the duty of the sheriff to enforce those laws enacted by the people for the protection of their lives, persons, property, health, and morals. We find nothing in the common law of Michigan to indicate that a duty is imposed on the sheriff to supply a road patrol. Michigan has codified the common law duties of the sheriff with little variance. For instance, sheriffs may execute all lawful orders and process of the circuit courts of this state. MCLA 600.582; MSA 27A.582. Sheriffs have charge and custody of the county jail and its prisoners. MCLA 51.75; MSA 5.868. Likewise, statutory law impliedly recognizes the duty of the sheriff to serve process in civil or criminal cases, preserve the peace, and apprehend persons committing a felony or a breach of the peace, because the sheriff may recruit suitable aid in performing these functions. MCLA 600.584; MSA 27A.584. See also MCLA 287.6; MSA 12.375 (enforcement of quarantine orders of animals); MCLA 752.527; MSA 28.135 (apprehension of persons who interrupt or disturb religious worship); MCLA 51.301; MSA 18.1221 (recovery of drowned bodies). However, our research again indicates no statutory requirement that the sheriff provide a road patrol. The issue, of whether the common law required the sheriff to provide a road patrol was recently considered by the Tennessee Supreme Court in State ex rel Windham v LaFever, 486 SW2d 740, 744 (Tenn, 1972), which concluded that the cómmon law imposed no such duty on the sheriff. The Court held: "[Tjt is the duty of all county sheriffs to maintain law and order in parts of the county which the sheriff knows are not being adequately policed by local authorities, which calls for the exercise of a reasonable degree of activity and diligence on the part of the sheriff to keep informed of conditions in his county, but does not require him .'to patrol all roads and highways in the County regularly.’ ” Likewise, the Court in Jones v Wittenberg, 357 F Supp 696, 700 (N.D. Ohio, 1973), addressed a collateral issue by stating: "The weight of what little authority there is indicates that the Sheriff is only required to respond to calls. He does not have to serve as a patrolman for the County.” The oldest discernable authority is State ex rel Thompson v Reichman, 135 Tenn 653, 665; 188 SW 225, 228 (1916), reh 135 Tenn 685; 188 SW 597 (1916), which declared: "We do not mean that it is his duty to patrol the county as the streets of the city are patrolled by the police, or to maintain a detective force to ferret out crimes. All we now decide is that it is the duty of the sheriff and his deputies to keep their eyés open for evidence of public offenses, and that is a distinct neglect of duty for them to ignore common knowledge of law violation or to intentionally avoid being where they have reason to believe that such offenses are being committed.” See also, In re Sulzmann, 125 Ohio St 594, 597; 183 NE 531, 532 (1932). Our review of the authorities leads us to hold that neither the common law nor Michigan statutory authority impose a duty on the sheriff to supply a full-time road patrol on all county roads and highways. A stricter duty is imposed upon the sheriff to maintain law and order in those areas of the county not adequately policed by local authorities. This does not mean that the sheriff must regularly patrol those areas. All that is minimally required is that the sheriff exercise reasonable diligence to (1) keep abreast of those areas inadequately policed, which may require limited vigilance, (2) monitor criminal activity or unusual conditions in the county, and (3) respond professionally to calls for assistance from the citizenry. Another compelling reason exists for our trepidation to interfere with administrative decisions of the Board of Commissioners. The Separation of Powers doctrine, US Const Arts I, II, III, § 1, and Const 1963, art 3, § 2, mandates the legislative, executive and judicial branches be preserved distinct and independant of each other. Attorney General ex rel Cook v O'Neill, 280 Mich 649; 274 NW 445 (1937). The Board of Commissioners have constitutionally been granted legislative and administrative powers and duties as provided by law. Const 1963, art 7, § 8. This power has been further implemented by legislation granting the board the power to appropriate money and manage county affairs. MCLA 46.11; MSA 5.331. The judiciary will not control the discretion of administrative bodies acting within the limits vested in them by law, unless the action is so capricious and arbitrary as to evidence a total failure to exercise discretion. Bischoff v County of Wayne, 320 Mich 376; 31 NW2d 798 (1948). Affirmed. No costs, a public question. The rationale is that where there is a police force patrolling the streets, the sheriff, in absence of information to the contrary, is justified in assuming the police will perform its duty. State ex rel Thompson v Reichman, 135 Tenn 653, 665; 188 SW 225, 228 (1916). Wayne County Jail Inmates v Wayne County Sheriff, 391 Mich 359, 364; 216 NW2d 910 (1974), does not compel a different result. In that case the Court recognized a legislative duty, MCLA 45.16; MSA 5.291, imposed upon the county to provide a "suitable and sufficient” jail. The county’s failure to perform that duty justified the Court’s order of performance. In the instant case there is no common law or legislative duty of the county or the sheriff to provide a road patrol, and therefore, no justification for this Court to act.

Per Curiam. Plaintiffs filed an original and two amended complaints asserting alternative and inconsistent theories and seeking declaratory relief. The trial court granted plaintiffs a declaratory judgment based on one of those theories. Plaintiffs now appeal therefrom. GCR 1963, 521 provides for declaratory relief. GCR 1963, 111.1 provides that declaratory relief may be sought as part of a statement of claim and permits it to be made in the alternative. GCR 1963, 521.5 provides that "[declaratory judgments shall have the force and effect of final judgments and shall be reviewable as final judgments”. GCR 1963, 806.1 states that " * * * an aggrieved party shall have a right to appeal from all final judgments or final orders from the Circuit Courts * * * ” (Emphasis supplied.) In a situation where a party seeks inconsistent relief, because the trial court can grant only one of the requested remedies, the party is not aggrieved by the denial of the other. Bell Rose Sanitarium, Inc v Metz, 246 Or 475; 425 P2d 168 (1967), Gamble v Gamble, 24 App Div 2d 625; 262 NYS2d 214 (1965), Printup v Smith, 212 Ga 501; 93 SE2d 679 (1956). Because the instant case falls within the ambit of that rule, plaintiffs are not aggrieved parties and, consequently, lack standing to appeal. Affirmed. Costs to appellees.

N. J. Kaufman, J. This is an appeal by right from an Oakland County Circuit Court judgment for plaintiffs in the amount of $64,800 plus interest and costs. The appeal is brought by the corporate defendants and by the Chernicks, who control the corporate defendants (hereinafter defendants). Plaintiffs instituted this action pursuant to MCLA 600.2919; MSA 27A.2919, which allows for treble damages where certain types of trespasses have been committed. Specifically, the statute provides, in pertinent part: "(1) Any person who: (a) cuts down or carries off any wood, underwood, trees, or timber or despoils or injures any trees on another’s lands, or (b) digs up or carries away stone, ore, gravel, clay, sand, turf, or mould or any root, fruit, or plant from another’s lands, or (c) cuts down or carries away any grass, hay, or any kind of grain from another’s lands without the permission of the owner of the lands, * * * , is liable to the owner of the land * * * for 3 times the amount of actual damages. If upon the trial of an action under this provision or any other action for trespass on lands it appears that the trespass was casual and involuntary, or that the defendant had probable cause to believe that the land on which the trespass was committed was his own, or that the wood, trees or timber taken were taken for the purpose of making or repairing any public road or bridge judgment shall be given for the amount of single damages only.” (Emphasis supplied.) Plaintiffs are the owners as tenants in common of a 40-acre tract of land in Brandon Township. Defendants Chernick own a neighboring property. In their complaint, plaintiffs alleged -that employees of the defendants had removed earth from 2.1 acres of plaintiffs’ property to be used as land fill on defendants’ land. Plaintiffs further claimed that several trees were destroyed by the heavy equipment used to remove the earth. A jury returned a verdict against defendants but excused defendants’ employees from liability because of the employees’ good-faith belief that their authority to remove earth was valid. The jury set damages in the amount of $21,600. The trial judge, based on a specific jury finding that the trespass was intentional, trebled the verdict. On appeal, defendants allege numerous grounds for reversal, one of which we find decisive. Defendants contend that, under the statute on which plaintiffs’ complaint was based, plaintiffs failed to satisfy the burden of proving that the earth was taken without consent. As such, defendants'argue, the trial court erred in denying a defense motion for a directed verdict against plaintiffs. We agree. Defendants cite Padman v Rhodes, 126 Mich 434; 85 NW 1130 (1901). Padman construed the predecessor statute to MCLA 600.2919; MSA 27A.2919 as "penal in its nature”. Id. at 435. As such, unlike the common law trespass, which makes consent an affirmative defense, Senecal v Labadie, 42 Mich 126; 3 NW 296 (1879), plaintiff bore the initial burden of showing nonconsent. The Padman Court stated: "This is but a recognition of the general rule that, where there is an exception in the enacting clause of the statute, the pleader must negative the exception. * * * [People v Curtis, 95 Mich 212, 214; 54 NW 767 (1893)], and cases cited. It being necessary to allege that the defendant committed the act without leave of plaintiff, it was also necessary to prove it.” 126 Mich at 435. Where plaintiffs are tenants in common, each must, therefore, submit evidence of his or her nonconsent. Here, only one tenant, Emanuel Weisswasser, so testified. Although tenants in common share certain fiduciary responsibilities, see 4A Powell on Real Property, § 605, pp 619-624, we know of no authority which allows one tenant to be an agent to make representations for the other tenants without express authority to do so. Plaintiff Emanuel Weisswasser had no such authority. Plaintiffs argue that, even without testimony by all tenants, nonconsent can be inferred from "(1) total destruction of the land, and in the manner it was done, and the area where it was done, not just near the boundary line, but 530 feet into the interior of plaintiffs’ land; (2) the total lack of evidence of any consideration to plaintiffs, payment or any other excuse for being on plaintiffs’ land; (3) the denial by defendants in their pleadings that they were on the land; and (4) the * * * response of Michael Chernick, principal officer of each of the corporations and partner in the Detroit Construction Company, when informed of the trespass ["shoot them”].” We disagree. In each instance, the evidence cited by plaintiffs is equally as probative of consent as it is of nonconsent. Plaintiffs also contend that placing all eight tenants on the stand would have been an unnecessary waste of time. We are not convinced. Given the burden of proof assigned by Padman and the penal nature of the complaint, defendants have the legal right, by making a general denial, to put the plaintiffs to their proofs. Further, the General Court Rules provide useful expedients to save judicial time. Plaintiffs might, pursuant to GCR 1963, 312.1, have made a request for an admission from defendants that they lacked consent. If defendants wrongfully refused to admit lack of consent, the plaintiffs could have recovered "the reasonable expenses in making such proof [of nonconsent], including reasonable attorney’s fees”. GCR 1963, 313.3. If testifying would have caused undue hardship to any of the plaintiff tenants, a deposition might have been taken and used in court pursuant to GCR 1963, 302.4(3). Because common law trespass places the burden of proof concerning consent on the defendant, the instant evidence might have supported a verdict on single damages under a common law theory, Senecal v Labadie, supra, Vanderkarr v Thompson, 19 Mich 82 (1869). Plaintiff, however, did not plead such a theory. We cannot consider the common law theory as included within this statutory cause of action. Because of the difference in proof requirements and in legal origin between the two, each must be specifically pled to adequately inform the defendant of his burden at trial. For the reasons stated above, we, therefore, reverse the judgment of the trial court and remand for entry of judgment for defendants. Costs to defendants.

Danhof, P. J. On June 6, 1975, the plaintiff brought the present action against the; defendant city seeking payment for work completed under a contract between the parties. The defendant subsequently moved for an accelerated judgment against the plaintiff, which the trial court granted on July 3, 1975. The plaintiff now appeals of right. On May 2, 1972, the parties entered a written construction contract. It appears the contract was prepared by the defendant’s agents: The portion of the contract relevant to this appeal reads as follows: "140 —ARBITRATION a. General: Both parties to this Contract agree that as conditions precedent to the filing of an action in any court involving the amount or rate of payment or settlement for work performed by the Contractor under these Contract Documents, and as a condition precedent to the liability of the Owner for any amount other than contained in the estimates approved by the Engineer shall be referred to arbitration for decision and award. The arbitrator or board of arbitration shall have authority only to pass upon questions involving compensation to the Contractor for work actually performed but not allowed by the Engineer, and its authority shall not extend to the interpretation of the Plans and Specifications or the determination of the qualities or materials or workmanship furnished, nor shall it have authority to set aside or modify the terms or requirements of the Contract. b. Selection of Arbitrators: The parties may agree on one arbitrator; otherwise a board of arbitration shall consist of three persons, one to be named in writing by each party to this Contract within five (5) days after notice of arbitration is served by either party upon the other, and the third member chosen by the first two so named within five (5) days after notice of selection. In determining the award, the majority of the board shall govern. Certified copies of the findings and award shall be filed with the Owner and the Contractor. c. Compensation: The arbitrator or board of arbitration shall make such rules as it shall determine equitable to govern itself in the conduct of the investigation and determination of the award. Said member or members shall fix the amount of the cost of the proceedings, including a fair and reasonable compensation to the arbitrators, and shall determine how the total cost shall be borne.” Thereafter, a dispute arose as to the payment for the installation of a clay lining, which was done as part of the work in the reconstruction of sewage treatment facilities belonging to the defendant city. Pursuant to the contract, the matter was submitted to arbitration. On May 9, 1975, the arbitrator rendered a decision in favor of the defendant and against the plaintiff. The plaintiff then brought the present action. Pursuant to the defendant’s motion for accelerated judgment, a hearing was held by the trial court on July 3, 1975. The court granted the motion pursuant to GCR 1963, 116.1(5) for the reason that the plaintiff’s claim was barred by the prior decision of the arbitrator. The court stated that the contract clause, § 140, must be read in connection with MCLA 600.5001; MSA 27A.5001. The court further stated that it must be read in connection with the case law, specifically the cases of McCandliss v Ward W Ross, Inc, 45 Mich App 342; 206 NW2d 455 (1973), lv den, 389 Mich 795 (1973), and Kaleva-Norman-Dickson School District v Kaleva-Norman-Dickson School Teachers’ Ass’n, 393 Mich 583; 227 NW2d 500 (1975). The court went on to determine: "[T]his Court is of the opinion that reading that paragraph [§ 140] suggesting arbitration in the contract with the Statute and with the case law, makes the decision of the arbitrator binding upon both parties, and any action which is referred to by way of court procedure refers to subsequent action as is provided in Court Rule No. 769 [GCR 1963, 769] governing arbitration proceedings.” The court then granted the defendant’s motion. The dispositive issue on appeal is whether the trial court correctly granted the defendant’s motion for accelerated judgment. McCandliss v Ward W Ross, Inc, supra, at 343-344, states: "The arbitrator derives his power from the agreement between the parties, and the agreement of arbitration entered between the parties is the law of the case. Acme Cut Stone Co v New Center Development Corp, 281 Mich 32 [274 NW 700] (1937); Stowe v Mutual Home Builders Corp, 252 Mich 492 [233 NW 391] (1930).” In Acme Cut Stone Co v New Center Development Corp, 281 Mich 32, 49; 274 NW 700 (1937), the court quoted the following: "In 2 R. C. L. p 365, it is stated: " 'There is nothing peculiar in the rules of interpreta tion applied to agreements to submit to arbitration. As in the case of all agreements the courts seek to give effect to the intent of the parties as evidenced by the agreement itself. * * * It is possible for the parties in the agreement to limit the scope of the arbitration in any way that is desired.’ ” On the basis of the above authorities, it thus appears that once the court ascertains the intent of the parties from the arbitration agreement then the court will give effect to that intent as that is the law of the case. Further, the scope may be limited as the parties so choose. E E Tripp Excavating Contractor, Inc v Jackson County, 60 Mich App 221, 237; 230 NW2d 556 (1975), lv den, 394 Mich 834 (1975), recently held "that to avail themselves of the statutory arbitration provisions parties to a contract must clearly evidence that intent by a contract provision for entry of judgment upon the award by a circuit court”. The statutory provisions referred to were MCLA 600.5001 et seq.; MSA 27A.5001 et seq. The court also stated, supra at 236: "An agreement for statutory arbitration calls into play GCR 1963, 769.1, which is applicable only to statutory arbitration.” In reaching the above holding, the court cited McGunn v Hanlin, 29 Mich 476 (1874). McGunn v Hanlin, supra at 480-481, states in relevant part: "The agreement to submit to arbitration contains no covenant or agreement not to sue, or that the awards shall be made the foundation of a judgment. Without this condition it is a mere common-law arbitration, and enforceable only by action, in case either party fails to comply with it. The statute only refers to such agreements as fix upon some designated court in which judgment shall be entered on the award. — 2 Comp. L., p. 1917, § 6889, and seq. "Whatever force may be given to an award actually made under such an agreement, and not impeached for fraud or any other infirmity, there is no authority for holding that parties who have agreed to arbitrate have, by their agreement, precluded themselves from resorting to a court of justice. Such agreements will not be specifically enforced, nor will the arbitrators be compelled to act. — See case cited in 2 Story’s Eq. Jur., § 1457, and notes. And it is well settled that they cannot be pleaded in bar.” (Citations omitted.) In applying the above principles to the present case, the intent of the parties as evidenced by the arbitration section of their contract, § 140, will be controlling as to whether or not the present action is barred by the prior decision of the arbitrator. McCandliss v Ward W Ross, Inc, supra, Acme Cut Stone Co v New Center Development Corp, supra. In order for the parties to avail themselves of the statutory provisions, MCLA 600.5001 et seq.; MSA 27A.5001 et seq., and GCR 1963, 769.1, the contract must clearly evidence that the parties intended the arbitration award to be the foundation of a judgment. E E Tripp Excavating Contractor, Inc v Jackson County, supra, McGunn v Hanlin, supra. No such intent is evidenced by the arbitration provision in the instant case. The parties only agreed that arbitration would be a condition precedent to the filing of an action. This does not clearly evidence, or even reasonably imply, that they intended the award to be the basis of a judgment. Accordingly, we find the parties may not avail themselves of the statutory provisions, MCLA 600.5001 et seq.; MSA 27A.5001 et seq., and the court rule, GCR 1963, 769.1. Further, there is no wording that indicates the parties intended the decision of the arbitrator to be binding and conclusive. There is no provision which could be construed to be a covenant not to sue. Absent statutory arbitration or an agreement by the parties, the plaintiff is not precluded from bringing the present action. Therefore, we hold the trial court erred in granting the defendant’s motion for accelerated judgment. Reversed and remanded. Costs to the plaintiff. It is not clear how Kaleva-Norman-Dickson School District v Kaleva-Norman-Dickson Teachers’ Ass’n, supra, applies to the present case. In any event, we find no conflict between that case and the present one. The predecessor of MCLA 600.5001 et seq.; MSA 27A.5001 et seq.

R. B. Burns, J. Defendant appeals from a summary judgment in favor of plaintiff requiring the defendant to defend the plaintiff against, and to pay any judgment resulting from, a third-party action brought ancillary to Wilhelm v The Detroit Edison Co, 56 Mich App 116; 224 NW2d 289 (1974). Wilhelm was a painter who was electrocuted by a high-tension wire while working on the roof of the S. S. Kresge Company building located within the Pontiac Mall shopping center. Wilhelm’s administratrix brought a wrongful death action against Detroit Edison, Pontiac Mall, and Kresge. The Mall filed a third-party complaint for indemnification and/or contribution against the various contractors (including the plaintiff) allegedly responsible for the negligent construction of a safety fence designed to protect against the electrical hazard that killed the painter. The plaintiff was dismissed from the wrongful death action before trial on a motion for summary judgment. Subsequently, the case was tried by a jury and a verdict in favor of Wilhelm was rendered against Edison and the Mall. The Court of Appeals affirmed the verdict but reversed the summary judgment on behalf of the plaintiff and the other third-party defendants. Plaintiff then began this suit for declaratory relief to determine if the "Combined Comprehensive Liability Policy” in force at the time of the allegedly negligent installation of the fence required the defendant to defend, and, possibly, to pay any judgment rendered against the plaintiff. The trial court found that the insurance policy in question was ambiguous, and that the ambiguity must be resolved in favor of the plaintiff insured. The Comprehensive Liability Policy in effect at the time of installation provided: "Coverage B — Bodily Injury Liability — Except Automobile. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay or the liability of others assumed by him under contract for damages, including damages for care and loss of services, because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person or persons. "Exclusions. This policy does not apply: "(e) Products Hazard. The term 'products hazard’ means "(1) goods or products manufactured, sold, handled or distributed by the named insured or by others trading under his name, if the accident occurs after possession of such goods or products has been relinquished to others by the named insured or by others trading under his name and if such accident occurs away from premises owned, rented or controlled by the named insured or on premises for which the classification stated in division (a) of the declarations excludes any part of the foregoing; provided, such goods or products shall be deemed to include any container thereof, other than a vehicle, but shall not include any vending machine or any property, other than such container, rented to or located for use of others but not sold. "(2) operations, if the accident occurs after such operations have been completed or abandoned and occurs away from premises owned, rented or controlled by the named insured; provided [operations shall not be deemed incomplete because improperly or defectively performed] or because further operations may be required pursuant to an agreement; provided further, the following shall not be deemed to be 'operations’ within the meaning of this paragraph: (a) pick up or delivery, except from or onto á railroad car, (b) the maintenance of vehicles owned or used by or in behalf of the insured, (c) the existence of tools, uninstalled equipment and abandoned or unused materials and (d) operations for which the classification stated in division (a) of the declarations specifically includes completed operations.” There is a split of authority throughout the country concerning the interpretation of "products hazard” and "completed operations” exclusionary paragraphs of insurance contracts, under facts similar to the facts of this case. Michigan courts have not ruled on this particular issue, although the United States Court of Appeals, Sixth Circuit, affirmed a decision of the United States District Court for the Eastern District of Michigan in McNally v American States Insurance Co, 308 F2d 438 (CA 6, 1962) which held that the contract was ambiguous. In our opinion the better view was expressed in Nielson v Travelers Indemnity Co, 174 F Supp 648, 658-659 (ND Iowa 1959), when the Court quoted from Kendrick v Mason, 234 La 271; 99 So 2d 108 (1958): "That Court stated (at page 114 of 99 So 2d): " 'It must be observed that neither the accident nor the damage resulting therefrom was caused by the sewer system itself, that is, the finished product, but was the direct result of the tort committed by Mason during the performance of his contract and during the life and term of the policy issued by the insurer. " 'The insurer contends that Mason purchased only ordinary operations coverage, paying no premium for products or completed operations protection; that his coverage protected him only as against accidents which occurred during the progress of the work and that accidents occurring after the completion of the work were not covered. In other words, the insurer contends that the dividing line between liability and nonliability under the policy is the moment of completion or abandonment of the work covered. " 'The insurer further contends that accidents occurring during the progress of the work and accidents happening after completion of the work are distinctively different risks, carrying separate and distinct premium rates, and that an accident occurring during the course of the work covered is an operation risk and one occurring after completion is a products or completed operations risk for which Mason is not covered, having declined same.’ "That Court further stated (at pages 116, 117 of 99 So 2d): " 'It is significant that the policy contract does not recite that any of these exclusions pertains to or refers to contractors who have no products for sale but who have performed a contract for the installation of a public utility, as in the instant case, or even the erection of any structure, public or private; whereas the policy does specifically recite that the assured, C. N. Mason, is a sewer and water main contractor. By no means of interpretation known to us can it be positively asserted that the exclusions in the policy and the endorsements attached thereto referred to contractors, and we deem itT the fundamental duty of the insurer to express clearly the limitations of its obligation. " 'In the instant case the exclusions and exceptions relied upon by the insurer to escape liability were not stated with clearness and precision, thereby defining the limits of its obligation therein. An analysis of the exclusion and exceptions therein clearly demonstrates an ambiguity and vagueness which under our well settled jurisprudence must be construed against the insurer. * * * " 'We are constrained to conclude that the liability exclusion provisions of the policy herein issued by the defendant to Mason are inapplicable herein for the reason that Mason handled no products but was engaged solely as a contractor and the exclusion provisions of the policy have no application to the construction work performed by him. The policy was issued to fully protect Mason against liability for acts of negligence committed by him during his performance of the contract. The tort which was the proximate cause of the damages sustained by plaintiff was in fact and in law committed during the performance of the construction contract. Both the accident and the injuries resulting therefrom were brought about not from the completed and accepted sewer system but from the direct result of the acts of negligence committed during its construction. The policy covering said accidents for which premiums were charged was then in full force and effect; and the conclusion is inescapable that the insurer is therefore liable in solido with its insured, Mason.’ ” Affirmed. Costs to plaintiff.

W. R. Peterson, J. This is an appeal from a circuit court reversal of a probate court order which terminated parental rights and made Jennifer Sharpe a permanent ward of the court. Jennifer’s mother, who was then divorced and the mother of four older children, three legitimate and one illegitimate, gave birth to Jennifer out of wedlock on August 20, 1968. Four days later she took Jennifer to the Ithaca home of Mr. & Mrs. Carl Tugen. The Tugens, who had a foster parent license, had once cared for her older illegitimate child, and an agreement was entered into whereby they would care for Jennifer for $15.00 a week. During the next two years, Jennifer’s mother visited Jennifer four times, each visit being for only a few minutes. In that time she paid only $200.00 to Mr. & Mrs. Tugen. Then, for a period of approximately 2-1/2 years, from 1970 until November 1, 1972, she made no contact with the Tugens, to whom her whereabouts was unknown since she had refused to provide them with her address or telephone number. She was, in fact, in southern Michigan throughout this period, most of the time residing in Lansing, a short drive from Ithaca. On November 1, 1972, a complaint was filed with the Gratiot County Probate Court by a juvenile oificer alleging that Jennifer had been neglected or abandoned by her parents. In consequence, a formal petition was authorized by the court, with Mrs. Tugen being the petitioner. Although properly served, Jennifer’s mother failed to appear at the hearing on the petition. The probate court quite properly found Jennifer to be within the jurisdiction of the court under § 2 of the juvenile code, made her a temporary ward of the court, placed her in foster care in the home of the Tugens and scheduled a further hearing for January 17, 1973. At this subsequent hearing, rescheduled to February 1, 1973, Jennifer’s mother, newly married, appeared with counsel, and the matter was adjourned, apparently to give her the opportunity to obtain witnesses to appear on her behalf. She made no request to see or visit Jennifer. And, for whatever cause, neither she nor her counsel took steps to bring the matter on for hearing. Eventually, over a year later, on request of the prosecuting attorney and of the attorney for the Tugens, the hearing was resumed on February 28, 1974, resulting in a written opinion and order placing Jennifer in the permanent custody of the court based on a finding of abandonment for a period of approximately two and a half years prior to the filing of the petition and continuing thereafter to the date of the final hearing. Thereafter Jennifer’s mother appealed to the circuit court which reversed the order of the probate court. On August 18, 1975, two days before her seventh birthday, Jennifer was returned to her mother, who, for all practical purposes, had abandoned her at birth. We cannot agree. The circuit court’s review found the findings of fact of the probate court to be supported by the record, but went on to say that the evidence of abandonment after the initial hearing in the probate court was not sufficiently clear and convincing to warrant termination of parental rights. The significance of this view of the evidence lies in the circuit court’s construction of the juvenile code that "the grounds for making a child a permanent ward of the court must be found to exist at a time when 'a child remains in foster care in the temporary custody of the court following the initial hearing’ ”, quoting § 19a of the juvenile code, which in pertinent part reads as follows: "Where a child remains in foster care in the tempo rary custody of the court following the initial hearing provided by section 19, the court may make a final determination and order placing the child in the permanent custody of the court, if it finds any of the following: * * * (b) The child is left with intent of desertion and abandonment by his parent or guardian in the care of another person without provision for his support or without communication for a period of at least 6 months. The failure to provide support or to communicate for a period of at least 6 months shall be presumptive evidence of the parent’s intent to abandon the child. If, in the opinion of the court, the evidence indicates that the parent or guardian has not made regular and substantial efforts to support or communicate with the child, the court may declare the child deserted and abandoned by his parent or guardian.” Because the § 19a enumeration of causes for placing a child in permanent custody follows an introductory reference to the right of the probate court to make a final determination of a cause where a child has been in temporary custody, the circuit court concluded that termination of parental rights for such causes could occur only when the causes existed after the child had been placed in temporary custody. Abandonment, then, no matter how long continued prior to institution of proceedings, could not be a cause for termination of parental rights unless continued for a period of at least six months after an initial order placing a child in foster care in the temporary custody of the court. It was unfortunate that the addition of § 19a to the juvenile code by 1972 PA 59, in listing the possible causes for termination of parental rights, seems to limit that power of the court to hearings following an initial placement in foster care as a temporary ward of the court, or even to suggest that to warrant termination of parental rights, the causes must occur after an initial placement in foster care. The draftsmanship of the act leaves much to be desired. But, placed in the context of the entire juvenile code, a different conclusion is reached. Thus § 2 of the act, already noted, gives the probate court jurisdiction over an abandoned child. Section 18 gives the probate court the power to make disposition of any child found to be within the act, and § 20 provides that every order for disposition or any supplemental order of disposition shall state whether the child is placed in temporary or permanent custody. Clearly, since the court’s order on initial hearing is a "disposition”, permanent custody is contemplated on the initial hearing. In much the same manner as did the circuit court herein, this court misread § 19a in In the Matter of Delbert Kidder, Jr, 59 Mich App 204, 210; 229 NW2d 380, 383 (1975), rev’d 393 Mich 819 (1975), to conclude that "final termination of parental rights may not be made unless the child has been in temporary custody of the court for two years” under § 19a(f). In Kidder, parental rights had been terminated by the probate court on initial hearing. On application for leave to appeal, the Supreme Court said: "This Court, under GCR 1963, 865.1(7) peremptorily reverses the decision of the Court of Appeals which held that the probate court was without jurisdiction to enter the order terminating parental rights. The probate court had jurisdiction of this case under MCLA 712A.2; MSA 27.3178(598.2) and was authorized to enter the order by MCLA 712A.20; MSA 27.3178(598.20). This Court specifically disapproves the reasoning of the Court of Appeals which determined that MCLA 712A.19; MSA 27.3178(598.19) and MCLA 712A.19a; MSA 27.3178(598.19a) imposed jurisdictional limits on the probate court’s authority to act in such cases. The two year provision in § 19a is not a minimum jurisdictional time during which a child must remain in foster care prior to proceeding to a termination of parental rights. One of the possible criteria for termination is continuing neglect. Sec. 19a provides that two years of foster care constitute prima facie evidence of continuing neglect.” 393 Mich at 819-820. It is, thus, clear that termination of parental rights may occur at initial hearing. Moreover, we hasten to add that we do not view § 19a as setting forth the exclusive causes for termination of parental rights. The probate courts are given jurisdiction over all those children whose circumstances bring them within the definitions of §2 of the juvenile code; and as to all such children, the probate courts are given the power of disposition under §§ 18 and 20 of the code, depending upon the discretion of the court in meeting the best interests of the child. The subparagraphs of § 19a must be viewed only as an illustrative enumeration of criteria which prima facie justify termination of parental rights; those criteria neither mandate permanent custody in every such case nor foreclose permanent custody in other instances where the child is within the jurisdiction of the court and its best interests so require. Nor do we find merit in the argument that once the probate judge at initial hearing has opted only to make a child a temporary ward of the court, termination of parental rights thereafter can only occur because of a subsequent occurrence of a § 19a cause. To so construe the act would be to allow termination on initial hearing without reference to the criteria set out in § 19a, but require prolongation of court proceedings after an initial hearing until the events enumerated therein had thereafter commenced and run their course. We noted in In the Matter of LaFlure, 48 Mich App 377, 387; 210 NW2d 482, 487 (1973), the desirability of expeditious settlement of custody disputes to minimize the harm to the child. We also noted therein at 391: "The probate courts are to consider all hearings conducted pursuant to MCLA 712A.12; MSA 27.3178(598.12), MCLA 712A.19; MSA 27.3178(598.19), and MCLA 712A.19a; MSA 27.3178(598.19a) as a single continuous proceeding. Therefore evidence admitted at any one hearing is to be considered evidence in all subsequent hearings.” Evidence of abandonment, or any other condition bearing on the welfare of a child, shown at an initial hearing, is to be considered at a later hearing with evidence of an interim continuation thereof or other interim events bearing on the welfare of the child, as a basis for a later disposition of the proceeding. To construe § 19a as foreclosing to the probate courts the power, once children have come under their temporary jurisdiction, to thereafter terminate parental rights unless and until the events enumerated in § 19a thereafter occur would be to destroy the continuity of the juvenile proceeding and to compel delay by withholding from the probate judge discretion in the timing of dispositions after jurisdiction has been initially acquired. We reverse and reinstate the order of the probate court terminating parental rights, with costs to appellant. MCLA 712A.2; MSA 27.3178(598.2): "Except as provided herein, the juvenile division of the probate court shall have: * * * (b) Jurisdiction in proceedings concerning any child under 17 years of age found within the county (1) Whose parent or other person legally responsible for the care and maintenance of such child, when able to do so, neglects or refuses to provide proper or necessary support, education as required by law, medical, surgical or other care necessary for his health, morals, or who is deprived of emotional well-being, or who is abandoned by his parents, guardian or other custodian, or who is otherwise without proper custody or guardianship;”. MCLA 712A.19a; MSA 27.3178(598.19a). MCLA 712A. 18; MSA 27.3178(598.18). MCLA 712A.20; MSA 27.3178(598.20). This followed from a misapplication of In the Matter of LaFlure, 48 Mich App 377; 210 NW2d 482 (1973). The writer cannot so read LaFlure and did not so understand it when concurring therein. To the contrary, see LaFlure at 381-382, 386 indicating that parental rights may be terminated at the initial hearing. Which is not to say that a disposition of a juvenile proceeding must be precipitous. The juvenile code, as herein construed, gives the probate judge the power to act speedily where necessary, or to pace the proceeding over such period of time as the exigencies of the case, in his judgment, require.

G. R. Deneweth, J. On December 13, 1973, the defendant was convicted after a jury trial of the crime of manslaughter. On February 4, 1974, a sentence of not less than 3 nor more than 15 years in the state prison was imposed. It appears that the defendant had been married to the decedent and that even after the divorce the parties maintained a close liaison with each other although they were never remarried. The day on which the decedent was killed, they had been visiting a local bar during the course of which visit an argument developed. Eventually the defendant went to her mobile home, then proceeded back to the bar to pick up the decedent, and returned to her mobile home. Upon arrival at the defendant’s mobile home, the decedent became quite angry at what he considered to be a failure on the part of the defendant to open the door quickly enough. He became violent and ripped the door off the hinges. At this point the defendant called the local sheriff’s office and informed the deputy who answered the call that there had been trouble between herself and the decedent, and that the trouble was continuing and that serious problems would arise if someone did not come out to her home. The deputy, who had received many earlier false alarms from the defendant, suggested a future call if the fracas continued. Approximately one-half hour later the defendant again called the sheriff’s office and informed the deputy that she had just shot the decedent. The deputy immediately went to the trailer and upon his arrival found the decedent lying in a pool of blood at one end thereof and the defendant lying on the other end of the trailer with a pistol still in her hand. Immediately upon entering, the deputy sheriff inquired as to what happened, and the defendant responded that the decedent had been beating her, that they had been arguing and that she found her gun and shot him. At the time the question was asked by the deputy and the answer was given, no Miranda warnings had been given to the defendant. The State Police subsequently arrived and they gave the defendant her Miranda warnings and then began to question her. The defendant refused further interrogation until she had the opportunity to consult with her attorney and she was removed to a hospital for treatment of the bruises and contusions which were on her body. The decedent was taken to the hospital and pronounced dead on arrival. The defendant was then arraigned on a charge of first-degree murder under the first-degree murder statute, MCLA 750.316; MSA 28.548. The complaint charged the defendant had feloniously and maliciously killed the decedent. After the examination the defendant was bound over to circuit court for trial on an open charge of murder. The information filed in the circuit court charged the defendant with first-degree murder. The defendant filed two motions to dismiss, both of which were denied by the trial judge. After the close of the proofs the trial judge dismissed the charge of first-degree murder and submitted the case to the jury on the charges of second-degree murder, manslaughter or not guilty. The theory under which the defendant proceeded during the trial was that of self-defense. The trial judge gave an instruction on self-defense which he later clarified for the jury, and on the basis of the instructions given and the facts as presented the jury returned a verdict of guilty of manslaughter. The appeal in this case raises four basic questions. 1) Whether or not it was error to bind the defendant over for trial on an open charge of murder. We think not. 2) Whether or not the deputy sheriffs questioning violated the requirements of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). We think it did. 3) Whether or not improper prosecution argument constituted reversible error. We think it did. 4) Whether or not the trial judge erred in the self-defense instructions which he gave the jury. We think he did. This Court is of the opinion that the conviction must be set aside and the case remanded for a new trial because of the failure on the part of the deputy sheriff to give the Miranda warning to the defendant prior to his asking her what happened. This, as well as the other issues raised by the defendant will hereinafter be reviewed in the order in which they were raised. Issue #1: It is so axiomatic so as not to require citation that the prosecution must establish two things at the preliminary examination: (1) that the crime with which the defendant has been charged was in fact committed, and (2) that there is reasonable cause to believe that the defendant committed that crime. Absent either element being established, the charges against the defendant must be dismissed at the examination stage. The facts in the instant case present a variation on the question of whether a defendant may be bound over to circuit court on an open charge of murder, and brought to trial on an information charging first-degree murder, where the preliminary examination testimony fails to show premeditation and deliberation. It is our opinion that this question must be answered in the affirmative. The case of People v Davis, 343 Mich 348, 355-356; 72 NW2d 269 (1955), sets forth the general proposition that: "Where a complaint charges that an accused feloniously, wilfully and of malice aforethought did kill and murder, the certification to the circuit court need not specify whether it was first- or second-degree murder.” This principle was further amplified in the case of People v Strutenski, 39 Mich App 72; 197 NW2d 296 (1972), where the Court held that the examining magistrate is not, at the time of the preliminary examination, required to determine the degree of murder. "The question of the degree of murder was a question for the trier of the facts— in this case the jury.” 39 Mich App at 73. The defendant in her argument has placed a great deal of emphasis upon the case of the People v Allen, 390 Mich 383; 212 NW2d 21 (1973). It is our opinion that the Allen case does not apply to the instant situation. That case speaks only to the question of felony murder, a peculiar form of first-degree murder. In the so-called "ordinary first-de gree murder case,” the corpus delecti is the body of the decedent and the criminal agency of another causing death, both of which facts were abundantly clear in the present case without the necessity of any confession. It may also be said arguendo that such a procedure even if it be considered error is harmless in view of the trial judge’s instructions to the jury not to consider the question of first-degree murder. Issue #2: When the sheriffs deputy who had been summoned to the mobile home by the defendant arrived at the scene he inquired as to "what happened?” The defendant’s response was that the decedent had been jumping up and down on her when she procured a pistol and killed him. Despite objection the trial court allowed this statement into evidence. Whether or not the deputy’s interrogation violated the Miranda doctrine of course must turn on whether or not the investigation had yet "focused” upon the defendant. This question must be answered in the affirmative, it being readily apparent that no other interpretation of the facts can be made. The officer knew that the mobile home belonged to the defendant; he had received a phone call from the defendant stating that she had shot the decedent and he observed no one else at the murder scene upon his arrival. It is likewise beyond argument that the defendant’s statements to the officer were completely exculpatory in nature. Any attempt to place such statements in the same category as admissions or confessions does mischief to logic and common sense. It is likewise true however that even such exculpatory statements as those in issue here fall within the Miranda rule, supra. We therefore feel constrained, albeit reluctantly and grudgingly, to follow Miranda in holding that even these exculpa tory statements must be excluded if taken during custodial interrogation in the absence of a Miranda warning prior to the interrogation being commenced. It is plain then that the questioning of the defendant was violative of Miranda, and that it was error to admit evidence of the exculpatory statement requiring reversal. Issue #3: During closing argument to the jury the prosecutor referred to the fact that the defendant was living out of wedlock with the decedent at the time of the homicide, characterizing this liaison as "lewd and lascivious cohabitation”. Such language to us connotes a crime under our law and it is our opinion that the denial of the objection to this language in the prosecutor’s argument (especially in view of the fact that the record is devoid of any evidence of cohabitation) constituted reversible error, see People v Adams, 311 Mich 446; 18 NW2d 888 (1945). Issue #4: As the Court has pointed out, the defendant’s theory of the case revolved around the doctrine of self-defense. The defendant has raised many questions regarding the court’s instruction on this issue, only two of which merit discussion. At one point the trial court charged that self-defense did not justify the taking of human life "unless you jurors shall be satisfied from the testimony that each element of self-defense was present”. Obviously this instruction is in direct conflict with People v Jackson, 390 Mich 621; 212 NW2d 918 (1973). Later, however, the trial judge balanced this instruction with the instruction that the burden of proof was on the prosecution to disprove self-defense. It is not necessary to reach a decision in this case to rule on this question, however, the attention of the trial court is called to the difficulty which this instruction presents and it is hereby cautioned to clarify the instructions in any subsequent trial because of the possibility of its being misunderstood. The defendant also alleges that the trial court was in error when it instructed the jury that the aggressor cannot invoke the doctrine of self-defense unless "she was, at the time, in immediate danger of losing her own life or suffering some grievous bodily injury”. This instruction appears to have been drawn almost entirely from 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1694, p 2046. The case of People v Sangster, 33 Mich App 712; 190 NW2d 317 (1971), has held the giving of this instruction is reversible error per se. Further discussion of this question is required, however, because of language used in the opinion in the case of People v Townes, 391 Mich 578; 218 NW2d 136 (1974), which case seems to indicate by implication, that circumstances may possibly exist where an aggressor may avail himself of the doctrine of self-defense. However, the Court indicated in that case that the instruction was error since no proof was ever adduced at the trial tending to show that the accused was ever the aggressor. That reasoning appears to be applicable in this case because the record is totally devoid of any evidence that the defendant was ever an aggressor in the fatal affray. For both of these reasons it is this Court’s opinion that the trial court did commit reversible error in the instruction which was given. In reviewing the briefs and the arguments of counsel, this Court must confess that it was utterly amazed at the number of questions of error which were raised on the appeal but which were not preserved by objection and which are, therefore, not considered. While not necessary to the disposition of this case, we feel that we would be remiss if we did not point out that the bench and bar of this state, as well as justice itself, are ill served by the questionable practice of failing to make timely objections, thus allowing a bad record to be made which it is hoped will create an appellate parachute in case of conviction. We think that procedure should come to an end. Reversed and remanded for further proceedings consistent with this opinion. N. J. Kaufman, P. J., concurs in result only. Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

T. M. Burns, J. On January 17, 1975, defendant was convicted after a jury trial of unlawfully driving away a motorcycle. MCLA 750.413; MSA 28.645. Defendant was sentenced to two to five years in prison and appeals as of right. Defendant raises three issues, two of which con cern the trial court’s instructions to the jury, the third concerning an alleged agreement between defendant and the prosecutor. The jury instructions pertinent to the first two issues are as follows: "Now, the statute under which this charge is brought, in so far as the same is material, provides in pertinent part as follows: " 'Any person who shall wilfully and without authority take possession of and drive or take away, and any person who shall assist in or be party to such taking and possession, driving or taking away of any motor vehicle belonging to another, shall be guilty of a felony’, and so forth. "Now, in regard to a motor vehicle, this being a motorcycle, it is covered by the statute. So you won’t have to concern yourselves with that. ”This statute is directed against anyone who takes possession of a motor vehicle without the consent of the owner. And that will be the issue that you will have to decide."(Emphasis added.) Both defense counsel and the prosecutor indicated approval with the instructions as given. I. Defendant contends that the trial court erred reversibly in instructing the jury that a motorcycle was a motor vehicle as thereby an important element of the crime charged was taken from the jury. There was no reversible error. Whether a motorcycle was a motor vehicle within the meaning of the statute under which defendant was charged was a question of law for the trial court to decide, not a factual issue for the jury. MCLA 750.413; MSA 28.645 concerns the unlawful taking of a motor vehicle. MCLA 750.412; MSA 28.644 defines "motor vehicle” as "all vehicles impelled on the public highways of this state by mechanical power”. The trial court’s informing the jury that they need not decide whether a motorcycle was a motor vehicle within the meaning of the statute was proper. II. Defendant also assigns error to the following instruction: "This statute is directed against anyone who takes possession of a motor vehicle without the consent of the owner. And that will be the issue that you will have to decide.” Defendant argues that this instruction made it unnecessary for the jury to decide whether he wilfully drove or took possession of the vehicle. The trial court properly instructed the jury on the elements of the crime by reading the statutory language. But the above-quoted statement of the court was indeed misleading and incorrect. The elements of the crime of unauthorized driving away of a motor vehicle are: (1) the possession of the vehicle must be taken, (2) there must be a driving away, (3) done wilfully, and (4) possession and the driving away must have been done without authority. People v Smith, 213 Mich 351; 182 NW 64 (1921), People v Kirby, 42 Mich App 97; 201 NW2d 355 (1972). When the trial court instructed the jury that the statute was directed against an individual who takes possession of a motor vehicle without the consent of the owner and that was the issue for them to decide, two of the elements of the crime were removed from the jury’s consideration: a driving away and wilfullness. If a trial court gives a proper instruction, but subsequently gives an improper instruction, we must presume that the jury followed the improper instruction. People v Gilbert Johnson, 52 Mich App 560; 218 NW2d 65 (1974). In the instant case, there were no additional instructions given to repudiate the erroneous one. See People v Neumann, 35 Mich App 193; 192 NW2d 345 (1971). In cases such as this, defense counsel’s failure to object to the instruction does not preclude appellate review. People v Neumann, supra, People v Johnson, supra. We must reverse. III. At trial, defense counsel moved to quash the information on the grounds that the defendant had fulfilled the terms of an agreement with the prosecutor’s office whereby the prosecutor agreed not to prosecute defendant if he cooperated in procuring evidence to be used in narcotics cases. Defense counsel stated that after defendant had cooperated with the prosecutor, he was informed that defendant would be prosecuted nonetheless because his cooperation was not satisfactory. The trial prosecutor did not dispute any of the allegations made by defense counsel concerning the alleged agreement. The trial court , denied the motion to quash ruling that the defendant had not presented a legally sufficient basis for the motion. Since the trial in the instant case, the Michigan Supreme Court decision in People v Reagan was rendered. 395 Mich 306; 235 NW2d 581 (1975). In Reagan, the Court held that when a prosecutor enters into an agreement with a defendant, the agreement and its terms are binding on the prosecutor’s office. In that case, the prosecutor agreed to dismiss the prosecution if the defendant successfully passed a polygraph test. The defendant did so and a nolle prosequi was entered in the criminal action. The prosecutor, however, then asked the defendant to submit to a truth serum test. Defendant refused, a new complaint was issued and the defendant was bound over to circuit court after a second preliminary examination. The defendant moved to quash the information based on the agreement with the prosecutor’s office. The motion was denied and defendant was ultimately found guilty. The Supreme Court reversed the conviction because defendant’s performance of his part of the agreement made it binding on the prosecutor’s office. In the case at bar, the existence of an agreement was alleged. While not proven, its existence was not denied by the trial prosecutor. Applying the Reagan holding to the instant case, we conclude that the defendant should have the opportunity to establish the existence of such an agreement on remand. The trial court shall conduct an evidentiary hearing to determine whether or not such an agreement existed and if so, what its terms were. If the trial court finds that an agreement did exist and that defendant did comply with its terms, defendant should be ordered discharged, if such were the terms of the agreement. If the trial court finds that an agreement did not exist or that the defendant did not comply with its terms, defendant may be retried. Reversed and remanded for proceedings not inconsistent with this opinion.

D. E. Holbrook, J. Defendants, husband and wife, were convicted of possession of marijuana with intent to deliver. MCLA 335.341(l)(c); MSA 18.1070(41)(l)(c). Defendant Jerry Johnson was sentenced to a prison term of 18 months to 4 years, while defendant Dawn Marie Johnson was sentenced to a term of 13 months to 4 years. Defendants appeal as of right. Sometime on the evening of January 21, 1974, the police arrived at the house trailer residence of defendants. The police were armed with a search warrant which was based on an affidavit which reads in part: "D That the following property constitutes evidence of criminal conduct: "Large quantity of marijuana controlled and possessed by Jerry R. Johnson in the living room and bedroom of the residence of Jerry R. Johnson.” When the police entered the house trailer, they did find nearly a pound of marijuana. Several other people, guests of the defendants, were also present in the trailer. However, none of the people in the trailer was exercising apparent control over the marijuana seized. Defendant Jerry R. Johnson was arrested. Defendant Dawn Marie Johnson was not arrested until the next day when she went to visit her husband in jail. At trial, the arresting officer was asked the reason for placing Dawn Johnson in custody: "Q. (defense attorney): Would it not be correct to say that you arrested Dawn Marie Johnson or at least she was arrested because of your belief that whatever was in that home was the joint property of the two of them, the husband and wife, and not from any acts on the part of Dawn Marie Johnson? "A. That would be true.” The sum total of the evidence against defendant Dawn Marie Johnson was that she lived with her husband, Jerry Johnson. We should first point out that joint ownership of the house trailer was never proved by the prosecution. But assuming without deciding that defendants were joint owners of the house trailer it is possible that such joint ownership could lead to an inference of joint possession of the contents of the house trailer. However, it would not be a "fair inference” to assume, from joint ownership of the house trailer, a specific intent to "deliver” any of the contents of the trailer. This is in fact the inference which the jury must have drawn in this case with regard to Dawn Marie Johnson, since she was convicted of possession of marijuana with intent to deliver. Since there was absolutely no evidence, other than possible joint ownership of the trailer, introduced against Dawn Marie Johnson, we hold that the jury based her conviction upon an unfair inference of intent to deliver. People v Atley, 392 Mich 298; 220 NW2d 465 (1974). If it is argued that joint possession of the marijuana is a reasonable inference to be drawn from joint ownership of the house trailer, and that intent to deliver is a reasonable inference to be drawn from the before-inferred possession, then this would be an imper missible inference built upon another inference, both based upon the same circumstantial evidence. Atley, supra, People v Gordon, 60 Mich App 412; 231 NW2d 409 (1975). During the search which led to the arrest of defendant Jerry Johnson, the police discovered that one of the parties present in the house trailer had, in his automobile, a plastic bag with a brownish-green substance in it. This person, Douglas Magnum, was not arrested, and neither was anyone else other than defendant Jerry Johnson. At trial, the prosecution called as witnesses all of the persons, other than defendants, who had been present in the trailer on the night of the search with the exception of witness Magnum. The defendants insisted that witness Magnum be produced, arguing that his testimony would not merely be cumulative because, unlike the other res gestae witnesses, he had had in his car a plastic bag with a small amount of a "brownish-green substance” in it. Defendants indicated that their cross-examination of witness Magnum might shed some light on the manner in which the marijuana came to be in their house trailer. Further, since witness Magnum had been in the trailer on the previous evening, defendants contended that there was a good likelihood that he might have been the secret police informant. Defendants had earlier indicated a possible desire to put forth an entrapment defense if they were allowed to interview the police informant. We agree with defendants that it does not appear that witness Magnum would have given testimony which was merely cumulative had he been produced by the prosecution. Therefore, in the absence of a diligent effort to produce the witness at trial, his nonproduction would be reversible error. The trial court specifically held that the nonproduction of the witness was not, in this case, excused by due diligence. The trial court concluded that the absent witness’s testimony would have been merely cumulative, however, and that the situation could be remedied by a jury instruction to the effect that the jury could assume that the absent witness would have given testimony favorable to the defendants had he been called. The people argue that such an instruction on the part of the trial judge was sufficient to overcome any prejudice to defendants, citing People v Gordon, supra, and People v Barker, 18 Mich App 544; 171 NW2d 574 (1969). The cases cited by the prosecution are distinguishable. In Barker, the court below had actually found due diligence on the part of the prosecution. In the case before us the court below found that the prosecution failed to exercise due diligence in attempting to produce the witness. In Gordon, the defense made no request or demand at trial that the witness in question be produced. In the case before us, the defendants made repeated demands that the witness be produced, and supported their demands with reasonable arguments. Therefore, we remand for a hearing based on People v Robinson, 391 Mich 555; 218 NW2d 1 (1974). If, on remand, the witness cannot be produced, then defendant Jerry Johnson’s conviction must be reversed since the lower court held that he was a res gestae witness and that the prosecution did not exercise due diligence in attempting to obtain his presence, and since we have held here that the facts below are not sufficient to warrant a finding that his testimony would be merely cumulative. If the witness is produced, and, after hearing his testimony, the court is at that time convinced that it is merely cumulative, then defendant Jerry Johnson’s conviction will be affirmed. If the witness is produced, and, after hearing his testimony, the court is convinced that it contains new evidence of a material nature, then a new trial is ordered as to defendant Jerry Johnson. One final issue must be dealt with since it is certain to arise again should a new trial be ordered for defendant Jerry Johnson. Defendants allege that the affidavit which supports the search warrant in this case fails to meet the requirements as set forth by the United States Supreme Court in Aguilar v Texas, 378 US 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964). The Aguilar case concerned the following affidavit: " 'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.’ ” 378 US 109; 84 S Ct 1511; 12 L Ed 2d 725. The Court held that the above affidavit was insufficient to allow the magistrate to determine that probable cause existed and that a warrant should be issued. The Court stated at 378 US 114; 84 S Ct 1514; 12 L Ed 2d 729: "Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible’ or his information 'reliable.’ ” (Citations omitted.) The affidavit in the case below reads partly as follows: "That your deponent is a member of the Barry County Sheriffs Department and that a credible person known to your deponent as a credible and reliable person was in the residence at 5795 Guernsey Lake Road, Barry County, Michigan, on January 20, 1974, at approximately, to wit: 7:30 p.m. in the residence of Jerry R. Johnson; that said credible person observed the above stated large quantity of marijuana in said living room and bedroom of the residence of Jerry R. Johnson at said location at said time and date and that said credible person gave reliable information to your deponent and said information was spoken with the personal knowledge of said credible person.” Certainly this affidavit contains sufficient information to inform the magistrate of the underlying circumstances from which the informant concluded that the contraband was where he claimed it was. This affidavit also differs from that in Aguilar in that the Aguilar affidavit simply stated that the information had been received from a credible person, while in the affidavit in the instant case, it was stated that the credible person was "known to your deponent as a credible and reliable person”. Thus, in the case before us, the affiant is swearing that, by his own personal knowledge, the informant is reliable. The magistrate may choose to believe or disbelieve the affiant; similarly, he would be forced to believe or disbelieve the affiant had it been sworn that the informant had given reliable information in the past. A magistrate may require more information from certain affiants than from others before reaching a determination as to the reliability of anonymous informants in different cases, but that is a decision for the magistrates, and not for this Court. Simply because a magistrate chooses to believe an affiant who claims he has information from an informant known to him to be reliable, is no reason for this Court to conclude that the magistrate has not acted as a "neutral and detached magistrate” in drawing "inferences from the facts which led to the complaint”. Aguilar, supra, 378 US 115; 84 S Ct 1514; 12 L Ed 2d 729. Reversed as to defendant Dawn Marie Johnson. Remanded for proceedings consistent with this opinion as to defendant Jerry R. Johnson.

McGregor, J. Defendant, John Brinson, was found guilty by the trial court, sitting without a jury, of conspiring to obtain money by false pretenses (MCLA 750.157a; MSA 28.354[1]) and of obtaining money by false pretenses (MCLA 750.218; MSA 28.415). He appeals, in propria persona, as a matter of right. Defendant raises nine issues for our consideration. However, only one is of sufficient merit to warrant discussion. The defendant claims that on two separate occasions his constitutional right not to be "twice put in jeopardy” was violated. Defendant first contends that since he was previously prosecuted in Federal court, the State of Michigan was thereby precluded from bringing similar charges based on the same transaction. We reject this contention. See People v Cooper, 58 Mich App 284; 227 NW2d 319 (1975). Defendant also argues that his right not to be placed twice in jeopardy was violated when, after a first trial resulted in a mistrial, he as again tried for the same offense. Defendant claims that since there was no manifest necessity for declaring the mistrial, he could not constitutionally be retried. In People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), our Supreme Court held that the double jeopardy clause does not operate to bar all retrials of a cause subsequent to a mistrial having been granted. The Court stated: "Two types of situations are recognized where a second trial is permitted. First, in those situations where 'manifest necessity’ requires it, and second, in those cases where the defendant consents to a mistrial.” 388 Mich 590, 598. (Footnote deleted.) In the instant case, the trial court entered an order declaring a mistrial for the reason that the defendant had voluntarily absented himself from appearing in court. Prior to the entry of this order, the trial court discussed this matter with the prosecutor and the defendant’s attorney on the record. The proceedings opened with the trial court indicating that the defendant was not present for the trial the day before nor on the present date. The trial court then inquired of defense counsel if he had any knowledge of the defendant’s whereabouts. Counsel responded in the negative. The court then inquired of the respective attorneys as to what they would recommend. The prosecutor recommended that the trial be continued notwithstanding the defendant’s absence, but defense counsel objected to this and suggested that the proceedings be stayed for one more day or that a mistrial be declared. The trial court responded that he felt that declaring a mistrial would be . the better course of action to follow. When defense counsel was then asked if he would consent to the entry of an order declaring a mistrial, he responded that he would do so. Defendant’s argument on appeal that there was no manifest necessity for declaring the mistrial is well taken. In People v Swan, 394 Mich 451; 231 NW2d 651 (1975), the Supreme Court held that a defendant’s voluntary absence from the courtroom after trial has begun waives his right to be present and does not preclude the trial judge from proceeding with the trial to conclusion. Thus, since the trial court could have properly continued defendant’s trial in the present case, the granting of the mistrial cannot be said to have been required by manifest necessity. However, the second exception to the double jeopardy clause is that a defendant may be retried if he consents to the declaration of a mistrial. In the present case, as noted above, defense counsel consented to the mistrial, but the defendant did not. Thus, the sole issue to be resolved is whether a defense counsel’s consent to a mistrial can operate as the valid consent of his client. We find People v Belen Johnson, 62 Mich App 63; 233 NW2d 188 (1975), to be dispositive of this issue. In that case, our Court held that defense counsel’s consent to the granting of a mistrial was binding on the defendant even though the defendant himself did not actually consent. The Court stated: "Incontestably, the record in the instant case clearly manifests the desire of defense counsel to terminate the proceedings and forgo any right defendant might have to proceed to judgment before the involved jury. However, defendant claims that this does not suffice to evidence a waiver of his right not to be twice place in jeopardy for the same offense. There must, he contends, be an of-record waiver of this right by defendant himself. Any purported waiver of defendant’s rights not complying with this procedure necessarily must, it is alleged, give way as being inconsistent with applicable case law limitations vis-a-vis waiver of constitutional rights. "The defendant, in effect, attempts to place the waiver of the double jeopardy bar in the class of rights which may be waived only by defendant and not by his counsel. In People v Degraffenreid, 19 Mich App 702; 173 NW2d 317 (1969), this Court stated that some rights are so essential that an attorney cannot waive them for a defendant. Given as examples of such rights were the right to a jury trial * * * , and the right to counsel * * * . In Degraffenreid, this Court held that the right to have a court suppress illegally seized evidence is not a right which historically has been so completely protected that it can be waived only by the defendant personally. We think that the decision by defense counsel to seek a mistrial falls within the same general category.” 62 Mich App 63, 68-69. The facts of the present case are far more compelling than they were in Belen Johnson, supra. When the defendant chose voluntarily to absent himself from the trail, he placed his counsel in a serious dilemma. Defense counsel Could have either consented to the mistrial or have allowed the trial to continue in the defendant’s absence. Under these circumstances, it would appear that defense counsel’s decision to consent to the mistrial was in his client’s best interests. Defendant cannot now complain that this decision did not ultimately inure to his benefit. Consequently, we hold that the defendant’s retrial did not violate his right not to be twice placed in jeopardy. Affirmed.

Danhof, J. On July 31, 1974, the plaintiff brought the present action seeking an order of superintending control against the defendant board of appeals. In his complaint, the plaintiff alleged he had applied to the defendant board for a variance. He further alleged that after a public hearing on this matter the board denied his application, but that on the evidence duly presented to the board the application should have been granted. On August 15, 1974, the trial court ordered a rehearing by the defendant board "for the purpose of establishing a complete record with the Board setting forth its findings of fact” because the record at the previous hearing was found to be deficient. After the rehearing, the plaintiff’s application was again denied. Further, the defendant board had again failed to set forth any findings of fact upon which it had denied the plaintiffs application. However, the parties did enter a stipulation of facts into the record on October 7, 1974. In the stipulation, the parties stated the issue as: "Has the board by its failure to grant the request denied the Petitioner a substantial property right similar to that enjoyed by others in the same zoning district and neighborhood and thus acted unreasonably?” In its opinion of January 23, 1975, the trial court addressed itself to the issue of whether the plaintiff had been denied equal protection of the law. In finding the plaintiff had been so denied, the court granted the plaintiff the relief prayed for. The dispositive issue raised on appeal is whether the trial court exceeded the permissible scope of review of the decision of the defendant board. Puritan-Greenfield Improvement Association v Leo, 7 Mich App 659, 665; 153 NW2d 162 (1967), states the applicable standard of review of a board of zoning appeals’ action on an application for the granting of a variance: "Review is obtained by means of an application for superintending control * * * which replaces certiorari. The minimum constitutional standard establishes the scope of review. The circuit judge and we are required by the Michigan Constitution to determine whether the findings of the board and its order are authorized by law and whether they are supported by competent, material, and substantial evidence on the whole record. Const 1963, art 6, § 28.” Further, judicial review should be restricted to "whether the record evidence supports the administrative finding on the issue whether the proposed use is reasonable”. Sabo v Monroe Twp, 394 Mich 531, 537; 232 NW2d 584 (1975). While we do not feel this is the better rule, we feel compelled to follow the Sabo case because of the recent remand order by the Supreme Court in Werkhoven v City of Grandville, 395 Mich 753; 232 NW2d 671 (1975). See Werkhoven v City of Grandville (On Remand), 65 Mich App 741; 238 NW2d 392 (1975). In the present case, the trial court erred by not following the standard of review for an application for superintending control as set forth in Puritan-Greenfield Improvement Association v Leo, supra. The review was limited to whether or not the decision of the defendant board was supported by the evidence on the record. While the board did not make a record in the present case, the stipulation it later entered was based upon the hearing held in this matter and was, therefore, sufficient. However, the issue presented did not comply with the dictates of Sabo, supra. Accordingly, this case is reversed and remanded so that the trial court can again order a rehearing before the defendant board for the purpose of considering the plaintiffs application in light of Sabo v Monroe Twp, supra. Reversed and remanded. Costs to abide the final outcome. V. J. Brennan, J., concurred.

Bashara, J. Defendant was convicted on Juñe 27, 1974 by a jury of assault with intent to commit rape, MCLA 750.85; MSA 28.280, and gross indecency between a male and female, MCLA 750.338b; MSA 28.570(2). He appeals. In the early morning hours of February 20, 1974 a man gained entrance by ploy to the apartment of the complaining witness. He attempted to rape her and forced her to perform fellatio. After the assault the complainant reported the incident to the police. The description of the assailant included statements that he either looked like a Southerner or spoke with a Southern accent, and that he had made references to association with a motorcycle gang. A week later the complaining witness identified the defendant by selecting his photograph after reviewing at least 50 to 60 photographs. At trial the defendant raised the defense of alibi. In conjunction with the theory of mistaken identity, one Janice Reid testified that she had recently mistaken the defendant for an individual known only by the name of "Chopper”. The description of Chopper paralleled the complaining witness’s initial description of the attacker including the Southern accent and membership in a motorcycle gang. Ms. Reid explained that a friend by the name of Evelyn DePue had seen her mistake the defendant for Chopper. Ms. DePue was also a friend of the defendant, and being aware of his precarious situation, persuaded Ms. Reid to testify. The first issue raised on appeal is whether the photographic identification procedure was impermissibly suggestive. Convictions based on eyewitness identification at trial following a pretrial identification by photograph, may be set aside only if the photographic identification procedure is so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v United States, 390 US 377, 384; 88 S Ct 967; 19 L Ed 2d 1247 (1968). The fairness of the identification procedure must be evaluated in the light of the totality of the circumstances. Neil v Biggers, 409 US 188, 199; 93 S Ct 375; 34 L Ed 2d 401 (1972), People v Lee, 391 Mich 618, 626; 218 NW2d 655 (1974). The photographs were presented to the complainant in file trays containing approximately 25 photos. She viewed 50 to 60 photographs over a period of about one hour. As the complaining witness completed review of another file tray of pictures, the police officer placed on the table the„ first photograph from a group he was holding in his hand for her review. The photo was that of the defendant. The complainant became hysterical. After regaining her composure, she identified the photo as that of her assailant. The record does not indicate that the police officer emphasized or drew attention to the defendant’s picture. The police officer testified that he held a number of photographs in his hand. He intended to show all the photographs to the complainant one at a time. Although the police officer admitted prior contact with the defendant, he related that nothing in the complainant’s description led him to focus on the defendant as a possible suspect. We hold that the photographic identification procedure was not impermissibly suggestive. Accordingly, it is unnecessary for us to consider whether the in-court identification was independent of the photographic identification procedure. United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), People v Franklin Anderson, 389 Mich 155, 169; 205 NW2d 461 (1973). Defendant next raises a number of issues regarding alleged improprieties committed by the prosecutor. He argues that the prosecutor engaged in an improper attack on the credibility of defense witness Janice Reid by (1) laughing during the course of her testimony, and (2) asking her whether the corroborating testimony of Evelyn DePue would be produced at trial. Defendant’s allegations were not preserved for appeal since defense counsel did not record trial objections to the comments, ask for a corrective instruction, or move for a mistrial. People v Gray, 45 Mich App 643, 645; 207 NW2d 161 (1973), affirmed, 393 Mich 1; 222 NW2d 515 (1974), People v Humphreys, 24 Mich App 411, 416; 180 NW2d 328 (1970), GCR 1963, 516.2. The record discloses that defense counsel was careful to include the prosecutor’s laughter on the record, but neither voiced an objection nor asked for a mistrial. Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure. People v Brocato, 17 Mich App 277, 305; 169 NW2d 483 (1969). We caution the prosecutor against improper attacks on the credibility of defense witnesses which unnecessarily risk reversal of an otherwise untainted case. See People v Christensen, 64 Mich App 23; 235 NW2d 50 (1975), and People v Lyons, 49 Mich 78; 13 NW 365 (1882). Defendant contends that the prosecutor in closing argument misstated and injected unsworn testimony by arguing that corroborating witnesses Chopper and Evelyn DePue could never be found, if in fact they did exist. Since no objection was made, the issue was not preserved on appeal. People v Gray, supra. The prosecutor’s closing argument must be evaluated as a whole, in light of the relationship it bears to the evidence adduced at trial. People v Cowell, 44 Mich App 623, 627; 205 NW2d 600 (1973). Our review of the record shows that appellate counsel has cited comments out of text to give it meaning not intended by the prosecutor. We believe the prosecutor was merely pointing out that the testimony of Janice Reid was ridiculous and unbelievable. Defendant also argues that the gross indecency statute between a male and female is unconsitutionally vague and gives no definite standard for the ascertainment of guilt. We disagree. People v Dexter, 6 Mich App 247; 148 NW2d 915 (1967), and People v Roy Edwards, 58 Mich App 146; 227 NW2d 263 (1975). But see People v Howell, 396 Mich 16; 238 NW2d 148 (1976). On September 21, 1975, the complainant committed suicide. On January 9, 1976, one week before scheduled oral argument, the appellate defender’s office filed a motion to remand to the trial court for an evidentiary hearing on whether newly discovered evidence justified a new trial. The appellate defender’s office had uncovered Chopper, also known as Gary Evans. The allegations contained in both briefs and supporting affidavits have no official record support. We deny appellate defender’s motion to remand to the trial judge for an evidentiary hearing on whether the newly discovered evidence requires a new trial. Our denial is without prejudice to appellate defender filing such a motion before the trial court. People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973). Affirmed. In People v Howell, 396 Mich 16; 238 NW2d 148 (1976), Justices Levin, Williams and Kavanagh rejected the gross indecency standard of "conduct that is of such character that the common sense of society regards it as indecent and improper”. This standard was announced by Justice [then Judge] Fitzgerald in People v Dexter, 6 Mich App 247, 253; 148 NW2d 915 (1967). They construed the " 'act of gross indecency’ to prohibit oral and manual sex acts committed without consent or with a person under the age of consent”. Justices Coleman, Fitzgerald, and Lindemer concurred with the opinion with the exception of the adoption of this standard. Therefore, the standard of People v Dexter, supra, still is viable.

Graves, J. The defendant Wesley Truesdail appeals from a decree declaring certain grants made at his instance to Eaton to be mortgages, and also finding to be due- and unpaid thereon a large amount and ordering foreclosure. ... The grants are absolute on their face, but Truesdail holds a defeasance made by Baton and which professes to explain the nature of the claims to be secured. The instrument is, however, not free from ambiguity in this respect. When the arrangement arose in 1857 Eaton held admitted cash demands against Truesdail amounting to $24,000, and it was expected by the parties that further claims to a large amount would arise out of new transactions which were anticipated. Subsequent to the defeasance some of the old indebtedness and interest accruing upon it was capitalized in new notes, and complainant contends that these items fell within the security and became secured by it, notwithstanding the circumstance that they were upon a consideration anterior to the grants and defeasances. But appellant contends that on just construction the security was only applicable to .such demands as originated after the defeasance, and that those of earlier origin, however changed in form afterwards, have never-been embraced. There have been large demands of both classes. After the parties had been severally examined at considerable length and numerous exhibits had been shown, the circuit judge on hearing the case referred it to a commissioner to compute and report the amount due as a basis for a final decree and ordered that the proofs already taken in the cause should be used on the reference, and moreover that further proofs might be taken by either party before the commissioner. The commissioner proceeded to execute the reference, and January 21st, 1878, he made and filed his report and therein found due at that date to complainant for principal and interest the sum of $31,037.15. No objections or exceptions were made by appellant or by any of the parties, and the report was regularly confirmed and a final decree was based upon it. The same ground is taken on each side in respect to the occasion which arose for exceptions to the report and the effect of the omission, as in the other cause. Complainant’s counsel insists that not having excepted the appellant is precluded from questioning the propriety of the finding of amount, and on the other hand appellant’s counsel urges that the court in the interlocutory decree by which the reference was ordered, decided the matter in question in complainant’s favor, and that the commissioner merely followed the decree, and hence there was no ground for alleging error against the report, and that the only proceeding exposed to complaint was the decretal order. The general course of the court in matters of this sort is fully explained in Gilbert’s For. Rom., 162 et. seq.; 2 Barb. Ch. Prac., [2 ed.], p. 544; Bk. II., ch. 3, sec. 4; 2 Daniell’s Ch. Pr., 1294 to 1322. Although we do not understand that there is any difference of opinion as to what the law of the court is on this subject, apart from the question of its application, the occasion will excuse a special reference to a few cases. In Thorne v. Hilliker, 12 Mich., 215, the commissioner’s report showed that when the bill was filed there was nothing due on the mortgage sought to be foreclosed, and the complainant made no exception. But the court on inspection of receipts on the mortgage concluded that an item of interest was behind at the time the bill was filed, and thereupon decreed in favor of complainant. On appeal this court decided that the complainant not having excepted to the report virtually adopted it and was bound and could not escape the effect in this court. In Utica Insurance Co. v. Lynch, 2 Barb. Ch., 573, it was ruled that where an error in calculation only has occurred and the report has been allowed to stand and be made a basis for a decree ordering payment of the amount reported, the error cannot be corrected whilst the decree so founded on the report remains in full force. In Turner v. Turner, 1 Swanston, 154, the master’s report had been confirmed at the Bolls, and a decree had been grounded upon it, and a review of it being sought, the case being one of great hardship, Lord Eldon said: “I do not conceive it is in the power of the Lord Chancellor to order a report to be reviewed after having been confirmed and followed by a decree of the Master of the Bolls while the decree stands.” Popple v. Day, 123 Mass., 520, was a case for redemption where the judge having primary cognizance overruled exceptions to the master’s report and decreed redemption on payment of certain sums reported. An appeal was taken and the appellant complained that the decree was wrong in respect to an amount of interest. But the court said: “As to the allowance of interest in the decree appealed from it is sufficient to say that the time from which interest is to be computed was found by the master and reported by him with no exception taken by the plaintiff. The decree follows the finding of the master, and no error is apparent in this respect.” Kinsman and Goddard v. Parkhurst, 18 How., 289, was a case where, among other things, an account was prayed of transactions in the manufacture and sale of patented machines under certain special arrangements. The circuit court made an interlocutory decree declaring Parkhurst’s right to an account, referring the cause to a master to take and state the accounts, and directing him in taking them to ascertain and report the number of machines made and sold. by Kinsman and Goddard, or either of them, the advances made by Kinsman and Goddard or either of them; and charging a profit of $100 on each machine sold. The master reported, and his report not being excepted to was confirmed and a final decree made that Kinsman and Goddard should pay to complainant the amount reported to be due from them. From this decree Kinsman and Goddard appealed, and Goddard objected that he had been charged by the final decree jointly with Kinsman for the profits on sales of machines made before the transfer to him by Kinsman. But the court replied: “If this be so it arises from the report of the master, who was directed by the interlocutory decree to report the sales made by Kinsman and Goddard, or either of them, and the advances and expenditures of them, or either of them. If his report was in this or any other particular erroneous, it was incumbent on the defendants to have pointed out the error by an exception filed pursuant to the rules of the court on that subject.” And further on, after referring to a recent motion to dismiss the appeal on the ground that the master’s report not having been excepted to, and appellants not having objected to the final decree, there was nothing open on the appeal, the court noticed that appellants’ counsel successfully opposed the motion by claiming that the appeal was brought to review the interlocutory decree which had decided the merits, and that there was no other ground; and then added: “ But the interlocutory decree does not direct the master to charge Goddard and Kinsman jointly with profits on sales made by Kinsman alone. If the master put such an interpretation on the decree, it was an erroneous interpretation and should have been brought before the court below by an exception. It - is too late to object to it here for the first time.” Similar citations might be greatly multiplied, but the foregoing are sufficient to illustrate the bearing on the present case of this feature of chancery procedure. We see that unless appellant’s counsel is correct in claiming that the interlocutory decree decided what demands were covered, the questions agitated are not open on this appeal, and we think it is clear that it made no decision on that subject. An examination of it satisfies-the court that it is a mere echo of the defeasance in this respect, and that it did not attempt to construe that instrument or to identify or distinguish the demands or classes of demands secured. The same uncertainty remained which had existed before. The dispute as to whether papers made subsequent upon consideration wholly or in part of prior date, and taken and held by Eaton at Truesdail’s specific request or at his implied request, or with his assent merely, were covered by the security, was not passed upon, and the purpose not to pass on it is distinctly discernible. The court seems to have thought the case was not ripe for such a determination; that the evidence addueible on the subject has not been exhausted, and that opportunity ought to be given for a full investigation by the commissioner, who might, as appellant’s counsel now insists is necessary, take into view all the surrounding circumstances. Had it been designed to settle the question in advance of inquiry by the commissioner, the decree would not have contemplated the reception by the commissioner of further proofs for his consideration, and proofs, too, which might upon a view not excluded by any decision, wholly vary the case. The interlocutory decree did not decide the matter wrongly, because it did not decide it at all. The subject was submitted to the commissioner, and it remained at large up to his finding of what matters were covered and pointing them out by his report. When this was done, the court had before it a finding upon the matter in dispute, and a finding destined by law to stand as the judgment of the court if not opposed, and it was not opposed. Not having opposed the report in the court below, the appellant is deemed to have acquiesced, and the matter is not open to him for the first time here. The case is within the principles stated in the authorities quoted from, and particularly Kinsman v. Parkhurst, supra.- The decree should be affirmed with costs. The other Justices concurred.

Campbell, C. J. We think plaintiff below had no ground of recovery. The accident which happened to him occurred from his being thrown off a foot board on the rear of a tender while backing up. This board was a narrow board which the switchmen were accustomed to get on and off while coupling and uncoupling cars and opening and closing switches. It had a bar above it intended for them to hold on to to keep their footing and Austin had let go this bar to shift hands in holding his lantern when he was thrown off by a jerk which he supposed was caused by striking a rail which had lost a portion of its surface and thus became somewhat depressed. Austin was a switchman employed daily at this place and with every means of knowledge of the track possessed by any body. He knew the track was rough and that defective rails were often put into the side-tracks which were not used for general business. He must have known that a road which was thus rough and uneven would entail serious .risks on any one standing on such a narrow foot-board, unless he held on to the support provided. Moreover, the whole fault, if there was any fault in the condition of this track, was due to the neglect, as he himself testifies, of the trackmen who were engaged in the same common service with himself. The risk of such a track was one of the ordinary risks connected with his employment. I do not think the evidence tends to show that it is negligent for a railroad company to use rough materials for its yard lines; and whether it was or not, Austin knew the ways of the road and ran the risks. I think there was no evidence to go to the jury to maintain a recovery and that judgment should be reversed and a new trial granted. Graves and Cooley, JJ., concurred. Marston, J. I think this case was properly submitted to the jury, as the evidence tended to sustain the plaintiff’s case.

Graves, J. Eaton having cashed certain paper made by Truesdail to the amount of $24,000 and being his creditor therefor, Truesdail on January 1st, 1857, took up such paper and gave to Eaton instead his four promissory notes on two years time and carrying semiannual interest at the rate of ten per cent, a year. These notes were respectively for $10,000, $7,000, $4,000 and $3,000. Eight months later and on September 4, 1857, Truesdail gave to Eaton an instrument having the general form of an absolute conveyance of land, but intended as a mortgage and on its face expressing that it was a mortgage for $21,000. It contained no express identification of the debt, and there were no terms expressly applying the paper to a specific $21,000. It was silent as to time of payment and in regard to interest. In April, 1876, Eaton filed the present bill to obtain a decree declaring the instrument in question a mortgage, and further relief in the form of foreclosure. The bill claimed that the whole principal sum of $21,-000 remained unpaid and was past due, and asked that interest be allowed on it and that foreclosure be granted for the entire sum. The answers of Walker and Mrs. Truesdail require no notice. The answer of defendant Wesley Truesdail, whilst admitting most of the bill, denied, first, that the mortgage deed was security for any interest whatever, and second, that any thing remained unpaid. Such were the chief questions raised by the pleadings. But in the progress of the controversy the vital points have come to be whether complainant is entitled to any interest, and if so, at what rate, complainant contending that he is not only entitled to interest, but to the rate specified in the notes, namely, ten per cent., and defendant Truesdail insisting that no interest is authorized, but if otherwise, then only at seven per cent. It is virtually admitted that there is something still behind on the security. The parties were examined as witnesses, and after hearing on the merits the court made an interlocutory decree and therein decided that Eaton was entitled to interest computed according to the terms of the notes, and ordered that it be referred to a commissioner to take further proofs as to payments and their application if the parties desired, and to report the amount due. January 1, 1877, the commissioner reported due and unpaid $29,859.12 at that date. The fact appeared and he found that the interest was paid in full up to January 1,1864. From that time he allowed interest on the debt at the rate of ten per cent, per annum, and he likewise allowed interest at the same rate on several payments credited to Truesdail. No objections were offered before the commissioner or any complaint made against the report by exceptions or otherwise, and it was regularly confirmed under the rule. Subsequently the court proceeded to ground a decree upon it, and the defendant Wesley Truesdail appealed. Complainant’s counsel contends that inasmuch as no exceptions "were filed to the report or any complaint brought against it by Truesdail, he must be deemed to have acquiesced, and is not now at liberty to question it or the matter of the decree resting on it, and hence cannot object to the allowance of interest. There is no doubt in regard to the general principle. Whenever a matter is by decree duly committed to a commissioner to obtain the result of his investigation and judgment, to serve as a basis for a subsequent judgment or decree of the court, his regular report, if not excepted to or complained of, will bind the parties, and it is the duty of the court of first resort to decree accordingly; and when it has been regularly confirmed without objection or exception and been followed by a final decree grounded upon it which is permitted to stand, it is not competent for an appellate court to review it or re-examine the matter of the final decree which rests upon it. This is the general rule, and defendant’s counsel admits it. He contends, however, that the question as to interest here is practically unaffected by the rule, and it appears to the court that this view is correct. Exceptions to a report are in the nature of an appeal from the decision of the commissioner to the court which has ordered the reference, and there can be no sensible foundation for an appeal to the court from the commissioner upon a question the parties have submitted to the court, and which the court has already decided in advance of the reference and as preliminary thereto, and in regard to which, moreover, the commissioner has no right of independent judgment, and has exercised no discretion. If the case be one where the interlocutory decree preceding reference decides the turning point, exceptions to the report are not available to compel the court "to re-examine that point. There may be a motion or petition to the court of first resort, or the appellate court may consider the matter. Exceptions are not appropriate and are not necessary. In such a case it is the determination of the court and not that of the commissioner which is involved and complained of, and failure to except to the report of the one implies no acquiescence in the action of the other. Clark v. Willoughby, 1 Barb. Ch., 68. As we have seen, the court in passing the interlocutory decree decided in favor of complainant upon the questions submitted to it concerning the right to interest and the rate allowable. These points are therefore not closed against appellant by the omission, to object and except. They are distinct, however, and the first to be considered is whether the court erred in deciding in favor of allowing interest at all. The mortgage deed was given by itself several months after the notes, without referring to them and without terms of specific identification of the debt, and as a second and distinct security, and appellant’s counsel insists that the effect due to it upon this inquiry must be liquidated by reference to the scope and import of its own terms and their lawful implications, and without recourse to antecedent documents. Yielding to this position as correct, and the consequence is indubitable that the instrument containing no express promise of interest, and specifying no time of payment, either at a future day or on demand, was after all a mortgage for $21,000 due presently or as soon as given, Sheehy v. Mandeville, 7 Cranch, 208, 217, and by implication an interest bearing security from its date. Hummel v. Brown, 24 Penn. St., 313; Selleck v. French, 1 Conn., 32; Roberts v. Cocke, 28 Gratt., 207; Reid v. Rensselaer Glass Factory, 3 Cow., 393: 5 id., 587; Heath v. Page, 63 Penn. St., 108; Swett v. Hooper, 62 Me., 54; People v. New York, 5 Cow., 331; Dodge v. Perkins, 9 Pick., 369; Rapelie v. Emory, 1 Dall., 349; Lessee of Dilworth v. Sinderling, 1 Binn., 488; Goodloe v. Clay, 6 B. Mon., 236; Aikin v. Peay, 5 Strobh., 15; Weeks v. Hasty, 13 Mass., 218; Cheesborough v. Hunter, 1 Hill (S. C.), 400; Smetz v. Kennedy, Riley, 218; Taylor v. Knox’s Ex’rs, 1 Dana, 391: s. c., 5 id., 466; Brewster v. Wakefield, 22 How., 118, 127. In Farquhar v. Morris, 7 Term R., 124, the suit was on a bond which neither specified a time for payment nor expressly reserved interest, and counsel contended that no interest could be allowed. But the court said, “There is no doubt but that interest is payable from the time of payment, namely, from the date, though not expressly reserved.” In Purdy v. Philips, 1 Duer, 369, the Superior court ruled in the same way, and Chief Justice Oakley cited the case in Term, and Francis v. Castleman, 4 Bibb, 282, as laying the law down correctly on the subject, and the Court of Appeals distinctly affirmed the decision of the Superior court. 1 Kern., 406. See also Clark v. Barlow, 4 Johns., 183; United States v. Gurney, 4 Cranch., 333; Young v. Godbe, 15 Wall., 562; N. Penn. R. R. Co. v. Adams, 54 Penn. St., 94. In Young v. Godbe, supra, the Supreme Court of the United States decided that on an account stated in a territory where there was no statute concerning interest, the right to interest might be implied and the amount reckoned on the debt after the rate generally practiced and recognized at such place. If the instrument separately considered warrants interest, it is equally true that it would give ground for it if the other transactions were grouped with it. The authorities cited and many others show clearly that the circumstances would imply the right to add interest, at least from the maturing of the notes in January, 1859, and there is no foundation for any question about interest earlier than that. The conclusion on this branch of the case is therefore that the court did not err in deciding that interest was allowable. The next question relates to the rate. The ruling that the amount of charge upon the land under the mortgage deed should be graduated and controlled by the terms concerning interest in the promissory notes, and that as such notes contained appellant’s written stipulation for interest at ten per cent., that therefore the same rate of interest should be allowed on the security in question, was error. The mortgage deed was a subsequent and supplementary security not connected with the notes and not given to secure them. It did not mention them or refer to their terms or conform to their provisions, and material stipulations in the notes cannot be imported into it with out destroying its legal identity as a contract. If it were described in pleading as a contract stipulating for interest at ten per cent, it would be a misdescription and the instrument itself would not support the allegation. The statute prescribes seven per cent, where the parties do not stipulate in writing for a different rate (Rev. Stat., 1846, ch. 84), and there was no stipulation in writing for ten per cent, on this security. Allowance at seven per cent, may be implied, but one at ten cannot be. To warrant the latter rate there must be a stipulation for it in writing. The case is not open for review in that part of it allowing payments. The subject was given to the commissioner for adjustment upon evidence, and he decided. No exceptions were filed and we are not informed in regard to the facts on which he acted, and cannot say whether his conclusion was correct or not. Presumably It was right. No steps have been taken or means provided for any review. The decree must be corrected by making the computations at seven per cent, instead of ten, and for this the record appears to afford the proper materials. The appellant will recover the costs of this court, and the case must be remanded for the execution of the decree as corrected. The other Justices concurred.

Cooley, J. One Hogan brought replevin to recover from Brock the possession of certain personal property, appraised at something over $3,000. The property was taken on the writ, and delivered to Hogan on his executing and delivering to the officer the statutory replevin bond, in which Lindner, the plaintiff in error, was one of the sureties. Brock was at that time the sheriff of Bay county, and the writ of replevin was executed by the coroner. The sureties in the replevin bond were excepted to, and failed to justify, and Hogan offered no other bond. This under the statute entitled Brock to a discontinuance of the suit, and he took judgment accordingly, electing to have a return of the property. A writ de ritorno was issued on this judgment, on which the coroner was able to find and return a part of the property only. The replevin bond was thereupon assigned to Brock, who brought suit upon it. On the trial, after plaintiff had made a prima facie case, the defendants offered to show that plaintiff, when the goods were replevied, held them as sheriff under attachments against George E. Smith, and not otherwise; that the attachments were all issued after September 1, 1877; that on November 26, 1877, Smith filed his petition in bankruptcy in- the District Court of the United States for the Eastern District of Michigan; that on the 30th of that month Smith was adjudged a bankrupt, and on the tenth day of December following an assignee in bankruptcy, was duly appointed, and an assignment made to him; that all this took place before any execution was issued in the attachment cases. This offer was objected to, .and ruled out. Had the evidence been given, it would have shown that at the time this suit was brought the sheriff, as against the assignee, had no special interest whatever in the goods; the attachments being dissolved by the adjudication in bankruptcy and assignment within four months of their issue. Rev. Stat. of U. S., § 5044. The evidence would thus have shown that the sheriff had never been damnified by the proceedings in replevin, and that as- between himself and the assignee in bankruptcy, he should surrender to the latter the possession of the goods replevied. It would thus have been made manifest that there could be no equity in any recovery by him in this suit. It is insisted, however, that under previous decisions of this court, the evidence was not admissible. Dorr v. Clark, 7 Mich., 310, and Williams v. Vail, 9 Mich., 162, are particularly referred to. In Dorr v. Clark it was decided that the sureties in a bond given to obtain release of property from an attachment, admit by giving the bond the title in the attachment debtor, and cannot be allowed in a suit on the bond to dispute it. A similar ruling was had in Williams v. Vail, in an action on a replevin bond. But the evidence offered here did not question the title of Smith, but admitted it. It was therefore in no sense inconsistent with any admissions of the sureties implied in giving the bond. Had the demands for which attachments were taken out been subsequently paid, it would clearly have been admissible for these sureties to show the fact in mitigation of damages in a suit on their bond. The sheriff is equitably entitled to nothing beyond what would indemnify him; and in that case he could have lost nothing. But if the attachments were dissolved by bankruptcy proceedings the case is not different. In either case the sheriff is not damnified. We think the proposed showing was clearly within the equity of the statute (Comp. L., § 6766) which permits defendants in suits on the replevin bond to show in mitigation of damages the extent of the plaintiff’s special interest. They proposed to show in this case that the special interest had wholly ceased. There is nothing in the objection that, as the assignment in bankruptcy took place before the judgment in replevin, this defense ought to have been made in the replevin suit. The sureties in the bond were not parties to that suit, and could have no control of it. Defendants also offered to show that some portion of the replevied property which the coroner had been unable to return on the writ de ritomo had been seized by the sheriff himself on other writs against Smith, and sold to satisfy them. This offer we also think was improperly overruled. The sheriff cannot compel these defendants to respond in damages for failure to restore to him what he has already possessed himself of. Whether he had a right to sell the goods on other writs is a question to be settled between him and the attaching or judgment creditors, and the assignee in bankruptcy. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred.

Campbell, C. J. Defendant in error in her own right and as assignee of her brother, as heirs at law of Joseph Smith, recovered judgment against Sands for one undivided fifth of certain premises in Manistee county, being lot 1 in section 7, town 21 north of range 16 west, except a parcel held by a third person. Joseph Smith was original purchaser from the United States by patent dated March 10, 1852. He died in 1858 leaving four children, Nancy B. Bagley, Luther Gr. Smith, Y. Adelaide Sherwood, and Augustus E. Smith, and two grandchil dren, Lilias I. Ford, now Lilias I. Davis, and George A. E. Ford. George A. E. Ford came of age May 18, 1873, and Mrs. Davis in 1869. August 13, 1867, Sands took a quit-claim deed from Delos L. Filer of the land in question. There was evidence tending to show that Filer then claimed to own the land, but Sands introduced no testimony to show from what source Filer derived title. Sands went at once into possession, and as the evidence tends to show, did so claiming to be the exclusive owner. On the 24th of January, 1866, a tax-deed was made to one Wilson Sailing for taxes of 1863, as purchaser of the State bid. On the 9th day of February, 1878, after this suit was commenced, a tax-deed was made to one Nelson Sailing of the same lands for taxes of 1864, as purchaser at the sale in October, 1865. On the 22d of August, 1866, one E. N. Sailing made-a quit-claim to Bobert M. Bisdon, who on April 16, 1870, quit-claimed one undivided half to Sands. He had before, on July 1, 1867, quit-claimed the other undivided half to Nathan Engelmann. On the 5th of May, 1869, Nathan Engelmann, Sarah Engelmann, Michal Engelmann, and Sophia Engelmann quit-claimed to William H. W. Cushman, Isaac N. Hardin and James W. Calkins, who, with their wives, on August 1, 1870, quit-claimed to Sands. It does not appear from the record whether these four Engelmanns were the original Nathan Engelmann and three others, or if not, how they represented him. It seems to have been assumed, however, that they conveyed his interest. On the 29th of December, 1877, one week before this suit was commenced, a quit-claim deed was made by Wilson (Sailing describing himself as alias E. Nelson Sailing, stating that it was given to confirm to Sands the title under the tax deed of January 24, 1866, and that the grantor was the original Wilson Sailing, to whom that deed was made. There was evidence tending to show such identity. No further evidence was put in by defendant except as to making valuable improvements and paying taxes. He claimed that if Mrs. Davis recovered, he was entitled under the statute of 1875 to pay for his improvements. Upon this point we need not consider the precise effect and operation of that statute (L. 1875, p. 207), as it has already been decided in Martin v. O’Conner, 37 Mich., 440, that it has no reference to tenants in common owning undivided interests. And the previous statute (Comp. L., § 6252-3), protecting improvements under tax-titles, did not (if not entirely inoperative now) apply to cases like the present, where the party in possession did not enter or hold merely under a tax-title. Gilman v. Riopelle, 18 Mich., 145; King v. Harrington, 18 Mich., 213. The construction of the statute of 1875, and its applicability ex post facto, need not therefore be discussed. It is very possible that on a partition there will be no difficulty in making such an allotment as will entirely protect all parties. The remaining questions lie within a narrow compass. Plaintiff below gave in evidence, in addition to the United States patent and her own derivative and inherited title, quit-claim conveyances to Delos L. Filer from three of the four surviving children of Joseph Smith, viz.: from Augustus E. Smith, August 11, 1862; from Violetta'Sherwood, August 23, 1866, and from, Nancy Bagley, May 20, 1864. Evidence was also given tending to show that Filer went into possession immediately after his purchase from Augustus E. Smith. This testimony showed that the government title was vested two-fifths in Sands, one-fifth in Luther G. Smith, one-fifth in Delos L. Filer, and one-fifth in Mrs. Davffi. The tax-title of 1863 was in Sands and that of 1864 in Sailing. The points presented are first, whéthér Sands was estopped from setting up the tax-titles; and Second, whether they are valid. There can be no doubt that under the laws of the United States which invest the government with plenary power over the primary disposition of -lands, all parties are bound to look to the United- States patent as the first instrument which made an absolute legal title in any one. Smith was the original purchaser, and until his entry of purchase, which was completed by the patent, the land was not open to private transfer or ownership, and was not before such entry taxable. The record of the patent in the proper office in Washington is declared by law to be of the same force as the patent itself. See McGarrahan v. Mining Co., 96 U. S., 316. While our recording laws allow and encourage the record of patents in our county registries, the failure so to record them cannot opérate to injuriously affect their validity or operation. It does not, however, follow from this that a purchaser from one who holds but an undivided interest in the patented lands is estopped from setting up an adverse claim which originated before his purchase, against the remaining co-tenants of the other undivided interests. There is no authority whatever for holding that one tenant in common may not, if he chooses and if he is actually able to do so, oust another. That has been frequently decided in this court, the latest case being Campau v. Dubois, decided at the October term, 1878. The testimony in this case tended to show that Filer claimed to own the land when he deeded it to Sands, and that Sands had entered as claiming the entire title. He took no' warranty from Filer, but entered under a quit-claim deed and from the date of his purchase had no further legal relations with him. He never had any legal relations of tenancy or other contract dealings with the other co-tenants of Filer. Whatever may have been Filer’s disability to purchase a tax-title that was the result of his own default, it is difficult to see how Sands can be made subject to any such disability. . When he purchased, the tax-title for 1863 and the tax sale for 1864 were both already in existence as adverse interests; which, if valid at all, would destroy all the other titles, and would make his own .purchase from Filer unavailing. Having no further relations with Filer, and no duties to perform towards him, there is no rule of law which would make it illegal or unconscionable to buy in any adverse title which he could find. And as he never derived any title or possession from the remaining tenants, he certainly owed no duties to them. As well remarked by the United States Supreme Court in Blights’ Lessee v. Rochester, 7 Wheat., 548, “The propriety of applying the doctrines between lessor and lessee, to a vendor and vendee, may well be doubted. The vendee acquires the title for himself, and his faith is not pledged to maintain the title of the vendor. The rights of the vendor are intended to be extinguished by the sale, and he has no continuing interest in the maintenance of his title, unless he should be called upon in consequence of some covenant or warranty in his deed. The property having become by the sale the property of the vendee, he has a right to fortify that title by the purchase of any other which may protect him in the quiet enjoyment of the premises. No principle of morality restrains him from doing this; nor is either the letter or spirit of the contract violated by it.” If Sands had gone into possession by the aid of the other tenants, or in recognition of their rights, he might in that way, perhaps, have incurred some duties towards them. But he went in as a stranger to their claims under a claim which denied their existence or validity. He became liable to an action of ejectment the moment he assumed possession. We see, therefore, no reason why he could not then or thereafter, as well as he could have done it before, purchase a title which wras at that time adverse to the holders of the whole original title. See further Watkins v. Holman, 16 Pet., 25; Willison v. Watkins, 3 Pet., 43; Society for the Propagation of the Gospel v. Pawlet, 4 Pet., 480; Bradstreet v. Huntington, 5 Pet., 402. The case of Osterhout v. Shoemaker, 3 Hill, 513, is also clear on this point, and in Sparrow v. Kingman, 1 Comst., 242, the doctrine is still more forcibly expressed and enforced beyond the rule in the latter case. It was held that inasmuch as a quit-claim deed was not an assertion of any particular title, or of any title at all, it did not of itself operate as an estoppel against either grantor or grantee as to the nature or extent of the title. And if so it could still less be made to protect strangers to it. The case of Blackwood v. Van Vleit, 30 Mich., 118, holds in conformity with these views that there can be no estoppel against purchasing tax-titles except against one who had a duty to pay the tax or remove the burden. It was competent, therefore, for Sands to rely on the tax-title of 1863 as belonging to himself, and that of 1864 as showing an outstanding title in Sailing. While the court admitted evidence tending to invalidate these deeds, yet when the case went to the jury no ruling was made upon them, and therefore we cannot properly consider those defects. The jury were charged that if Filer was in possession when the taxes were levied Sands could not set up these deeds in defense. This was error for the reasons above referred to. It follows that the judgment below must be reversed with costs and a new trial granted. The other Justices concurred.

Campbell, C. J. Danaher having had a claim disal lowed by the commissioners on Captain Ward’s estate, appealed to the Wayne circuit, where it was again disallowed under the finding of a referee. Error is brought to this court on the ground that the facts found do not support the judgment. The claim is for a balance due on a contract whereby Danaher was to get out a large amount of lumber for Captain Ward on his lands. It appears from the finding of the referee that an important part of the credit claimed for the estate in reduction was for the price of logs purchased by Danaher, he claiming that he bought the logs ready cut for the price agreed on, and the representatives of the estate claiming that he was to pay the price named for the stumpage, which wrould require a rejection of his claim for cutting that amount of logs. This dispute the referee decided against the estate, and found a balance due on that account of $25,996.76, with interest from July 1st, 1871. It is urged that this fact cannot be said to have been found, because while the referee said he felt bound to find it by a preponderance of evidence, he was not prepared to say he was entirely convinced that such was the actual fact. We cannot doubt that all he meant to say was that he thought the case not as clear as it might be, but that the evidence preponderated in favor of Danaher, and he felt bound— as he was certainly legally bound — to decide according to the weight of evidence. Having settled this as the balance due on this claim, he then proceeded to consider certain matters which it was insisted for the estate had put an end to the debt by other arrangements. There were four suits pending on the 16th of May, 1873, in which Danaher was interested, alone or with his partner Mr. Melendy. There was an action of assumpsit in their favor against Captain Ward, and an action of trespass in his name against them. There was an action of trover by Ward against Danaher, and an action of assumpsit by Milton D. Ward, his son, against Danaher and Melendy. These were independent of the present controversy. On that day Danaher met Captain Ward at Lndington, Danaher having present Judge White as his counsel, and Captain Ward having on his side two counsel and two agents who were not lawyers. It is found that these four controversies were then settled. Whether the present controversy was also included in those arrangements was disputed, and the question is whether the finding of the referee determines what was done. We think it is entirely defective on this point. It does not find there was any settlement. While the referee says the controversy before him turned on this point, he sets forth no more than a series of facts bearing upon it, and comes to no distinct conclusion. It is claimed, however, that the facts he states lead to that result. If such is their necessary meaning, perhaps this would be so, but we think they fall short of it. The referee finds that this claim was brought to attention and mentioned; that Captain Ward’s balance was called for and produced, but it is not found that Dana-her called for it or knew it, or that he presented his own claim. He also finds that Ward and his friends thought this claim was to be included, and that the negotiations clearly and unmistakably so impressed them. He further finds that at or near the close of the inter-’ view, while some of those who took part were present,— but not saying Danaher or White was present, — Ward directed his book-keeper to balance the account as it appeared on his books at $1,537.34 (which is not much over five per cent, of the amount the referee had previously found it should have been) by charging it to profit and loss. From these facts the referee finds that Ward understood the claim had been settled, and Danaher ought reasonably to have been apprised that. Ward so understood it. He then sets forth some events that took place thereafter which were unquestionably matters of evidence only, concerning the conduct of Danaher, which would undoubtedly have had some bearing to corroborate WTard’s claim. He finds there was no written statement of settlement made or intended; that the suits were all discontinued and some receipts passed. It is not found any receipt was made bearing on this claim, but that Danaher had for himself as well as for his firm, receipts in full of all claims in Ward’s favor against them. He finds from all this narrative that Danaher was estopped from asserting his claim was not settled and compromised. Not only is there no finding of any settlement, but it is impliedly negatived by this finding that the referee believed they actually came to a settlement. He leaves out entirely any statement that positively finds that Danaher either so intended or understood. The finding, at the strongest, means no more than that Ward had an equitable right to suppose one had been made, and should be protected. He has not set forth enough facts to make this out directly or inferentially without adding some things which do not appear. And in considering the able arguments bearing on the effect of conduct which would bind a party, we find ourselves at a loss to know just what that conduct was. If there was a settlement actually or by reasonable supposition, there is no finding which tends to show what were its terms, or whether, while Ward’s claims were all settled and discharged, there may not have been a balance due Danaher. The referee seems to have been anxious to avoid making findings which would require him to determine on conflicting testimony, and he has failed to come to a conclusion on the most important branch of the litigation. The question next arises whether the result of this failure to establish a defense leaves his finding to stand in regard to the original balance due Danaher, without taking the defense into the account at all. We think not. It is equivalent to a verdict that the plaintiff’s claim was made out, but the jury cannot say whether it has been discharged or not. It leaves the case half undecided. No finding -can stand which does not decide all that was submitted for decision. The referee certainly did not intend to give it as his conclusion that Danaher’s full claim is due and unsatisfied, and he has not so found. We think there has been- a mistrial, and that the judgment must be reversed with costs and the case remanded for a new trial. The other Justices concurred.

Graves, J. This bill was filed to reform and foreclose a mortgage given February 9, 1872, by defendants Conant to complainants to secure a loan of $1,200 running five years with interest at ten per cent, semi-annually. The premises are in the city of Greenville in the county of Montcalm, and the mortgage was written at Detroit by the aid of imperfect data, and very serious mistakes were committed in describing the property. The want of dates and other particulars which might have been supplied without inconvenience has impeded investigation and now causes some embarrassment, and in regard to several surrounding facts exactness of statement is found 'to be impossible. It would seem that several years ago about nine acres on the west side of what is called lot three of section fifteen were set apart as a distinct parcel, being about eighty rods in length north and south and about eighteen rods in width east and west, and having a street along the north end; that one Nathaniel M. Cole, being' owner, conveyed in 1866 the entire nine acres to Conant except one hundred and'thirty-seven rods in the northwest corner which he retained for a woolen factory and then severed from the main parcel; that at some time another piece was severed for separate enjoyment, and was held by Conant & Kelley; that this fragment was irregular in shape and extended from the street on the north around the east and south sides of the woolen factory lot to the west boundary of the main parcel and adjoined and bounded that lot on the east and south;: that it contained .ninety-eight one hundredths of an acre and was known as the “foundry lot” or “furnace lot.” When the loan was effected and mortgage given, the former of these small pieces certainly, and possibly the latter also was not owned by Conant, and the design was to so frame the mortgage as to include the residue of the nine-acre parcel and exclude them. They were distinct holdings separately occupied and used, and the-fact was sufficiently apparent to make itself known to all persons who directed attention to the situation. On the portion remaining of the nine-acre parcel and standing some distance east of the foundry or furnace lot,, there were buildings of considerable value, and this was taken into account in the negotiations concerning the security to be given and received, and it was distinctly understood that they should be embraced by the mortgage. But when the scrivener came to draw it, he began his description at the northwest corner of the lot, then ran southerly along the west line of the lot eight rods more or less to the southwest, corner of the lot; thence east along the south line of the lot one hundred and thirty-two feet; thence north and parallel with the west line of the lot to the northerly line thereof, and thence westerly along the north line of the lot one hundred and thirty-two feet to the place of beginning, and he concluded his description by giving “eight acres of land more or less” as the quantity included. The length of the line north and south is thus spoken of as eight instead of eighty rods, and the quantity of land as eight acres, — a circumstance showing there was gross misapprehension touching the descriptive features of the property meant to be inserted and a palpable miscarriage in the specification of quantity. Of course the call for the southwest corner of the lot would control, so that the mistake in distance could not have prejudiced the mortgage and the statement that there was “eight acres of land more or less,” when according to the distances given there could have been only sixty-four rods, or according to the calls for objects, only four acres, could not, it is probable, have caused much difficulty. But along with these defects we come to notice others of a serious nature. Giving to the ambiguity in respect to distance the correction due to it, and instead of a- parcel of about eight acres, or in other words, instead of the nine-acre parcel with the exception of the woolen factory lot and foundry lot in the northwest corner, the •description covers only about four acres in all, inclusive of the woolen factory lot and of part of the foundry lot. The buildings east of these lots are not embraced, and the full value of so much of the described premises as are' admitted to have been mortgageable by Conant was considerably less than the loan. No one seems to have given any special attention to the terms of the description as drawn up, and the mortgage slipped along through execution and delivery without any detection of its gross infirmity, and on the 26th of February, 1872, was recorded. As between the parties to it, the misdescription was first found out by Conant nearly two years later, namely, the 17th of February, 1874, and he at once notified complainants'. Until that time he had supposed the' description covered all the nine-acre parcel, except the factory and foundry lots, and no other property, and as socin as hé discovered the mistake, he and his wife joined in a second mortgage to correct it. The occurrence of the mistake as claimed is beyond controversy. That is not contested, and the mortgagors make no defense: neither does the defendant Selena V., Stoughton, who holds a later interest. The objection proceeds from the defendants Lewis and Ellsworth, who. are mortgagees of the furnace or foundry lot and of all the rest of the nine-acre parcel except the woolen factory lot and a strip four rods in width east and west and twenty rods in length north and south in the northeast corner of the parcel, and which mortgage they took on the 5th of December, 1878, and hence between the record of the defective mortgage and the execution of the mortgage given to correct it. Their answer makes no denial of the mistake. At some time prior to their mortgage they had acquired the furnace or foundry lot on a foreclosure, and in the fall of 1873 they began negotiating to sell it with certain water power to Conant. The business was conducted wholly by Mr. Lewis, and eventually the parties made a trade, and they received their mortgage in question for between $900 and $1,000 of the purchase money, and claim that they received it in good faith and without knowledge or notice of the mistake in complainant’s mortgage or of any fact to cause them to make inquiry about it. If this position is not impugned the defense must prevail. On the contrary, if the circumstances make out that before taking their mortgage Mr. Lewis became aware that the descriptive part of complainant’s mortgage was defective, — that the terms included property not mortgageable by Conant, and that some part at least of the nine acre parcel not embraced was designed to be 'put in, and was supposed by Conant to be included, the defense must fail. If he had warning, to that extent he was put upon his guard and was called upon to make reasonable inquiry before going further to ascertain what premises were meant to be mortgaged to complainants, and the ease shows that such investigation would have led to ample knowledge of complainant’s equity. The point is therefore as to what Mr. Lewis understood. In view of the ownership by his firm of the furnace or foundry lot, and of other circumstances, the inference is unavoidable that he was conversant with the abuttals. Moreover, the evidence is quite clear that he was familiar with the various localities; that he understood that the woolen factory lot had for many years been separately held and could not have been mortgaged by Conant, at the time complainant’s mortgage was given, and that; the foundry or furnace lot he was selling was considered* as not touched by that mortgage. And the circumstances-, suggest that he may have known as matter of fact that the foundry lot could not have been mortgaged by Conant; at the date of complainant’s mortgage. Upon this specific point the record is left ambiguous, however. When the expedient of a mortgage to Lewis and Ellsworth for the purchase price of the foundry lot was spoken of, they deemed it important to make a searching examination of the state of the title of the nine-acre parcel. Mr. Lewis testifies that he immediately proceeded to investigate it; that he called at the abstract office of Jones & Stevens and inspected their books and examined complainant’s mortgage and saw the Stoughton mortgage; that, he discovered that complainant’s mortgage embraced only about one-acre of land which belonged to Conant, and that it covered Cole’s woolen factory lot; that he found the bounds unlike those in any other papers. Mr. Jones testifies that the lines in complainant’s, mortgage not only include the woolen factory lot, but also part of the very foundry lot Lewis sold to Conant. Mr. Lewis is a lawyer and was well acquainted with the localities, the division lines and antecedent modes of separate enjoyment. Thus aided and impelled by interest, his. attention must have been directed in a special manner and under great advantage to the bounds and descriptive terms given, and to all clauses and particulars bearing on the state of the title to the nine-acre parcel. The mortgage of April, 1873, to Mrs. Stoughton from Conant to indemnify her against complainant’s mortgage must have been scrutinized. It declared expressly that the premises it described and covered were the same covered by complainant’s mortgage and described them as being the west nine acres of lot three of section fifteen except the furnace lot and woolen factory lot, and hence the same premises intended to have been described in the mortgage to complainants. There was in this a distinct and intelligible intimation by Conant that complainant’s mortgage was designed to cover, and by him was supposed to cover, all of the nine-acre parcel except the two lots, and seeing their, explanation at the same time the manifest blunders and incongruities were found in complainant’s mortgage, Mr. Lewis must have received an impression that there was something essentially wrong in that mortgage; that a misdescription had occurred, and that the instrument was intended to apply to some portion at least of the. nine-acre parcel, which the ambiguous language did not purport to embrace. He may not conceive he was apprised that complainant’s mortgage was intended to include a larger quantity than was actually described. He so swears in substance. At the same time he testifies that after his search he told Conant he would make the trade and that Conant spoke of having mortgaged a portion of the nine-acre parcel to complainants, whereupon he (Lewis) replied at once that he knew it; that he had examined the records and had seen just what it covered. His present opinion of the bearing and effect of what he saw and knew, or his conception -of the kind or extent of belief due to matters within the scope of his attention, cannot be important. It is not competent to insist upon a state of ignorance when knowledge is the necessary consequence of admitted or established facts, or on any qualification,of belief which is repugnant to reason and experience. He testifies that he does not recollect having talked with Mr. Jones at the abstract office on examining the books, about any mistake in complainant’s mortgage. But Mr. Jones testifies very positively that they conversed about such a mistake, and moreover that it was then matter of observation that the boundary did not include as much as was called for, and at the same time took in land Conant. did not own. Further detail is needless. The court is satisfied after an attentive consideration of all the circumstances that Mr. Lewis was cognizant of matters which made it his duty to seek explanation as to how much and what part of the nine-acre parcel was intended to be embraced instead of suppressing it, as he seems to have done, when Mr. Conant began to speak of the mortgage. Had he then disclosed to Mr. Conant the discrepancies and irregularities discovered, the errors would have been exposed and all ground of controversy removed. His own testimony shows he recognized serious defects; that he observed that none of the property the terms of description covered was owned by Conant except a small fraction of less value than the consideration; and that part of what was embraced but not owned by Conant was in fact a portion of the very lot he was selling, to Conant. • The conclusion from all the circumstances is unavoidable that Mr. Lewis was cognizant of a state of things which necessitated an inference in his mind that the mortgage was intended to include some portion at least which was not embraced of the nine-acre parcel. He was'under a duty to make inquiry, and had he made it the whole facts would have been revealed. Bent v. Coleman, Sup. Ct. Ill. (7 Reporter, 366). The decree allowing the defense must be reversed with costs to com plainant, and a new decree will be entered correcting tbe mortgage by making it apply to tbe nine-acre parcel, except tbe factory and foundry lots, and granting foreclosure of tbe mortgage as reformed. Tbe costs are chargeable against tbe defendants Ells-worth and Lewis so far as they occasioned costs. This would include all tbe costs and expenses occasioned by tbe defense set up in their behalf below, with full costs in tbe Supreme Court. Costs merely incidental to tbe foreclosure, as unaffected by their special defense, would not be imposed on them personally. Tbe only real controversy in both courts was that concerning tbe priority of complainant’s mortgage over tbe claim of Ellsworth and Lewis as in fact taken subject to it, and they must bear all tbe costs of this issue, which is tbe one on which tbe expenses were mainly incurred. Campbell, C. J., and Cooley, L, concurred. Marston, J., did not sit in this case.

Marston, J. In April, 1878, Comstock was elected clerk of the Superior Court of Grand Rapids. The county clerk of Kent county, claiming to be ex officio clerk of the Superior Court, protested against Comstock’s being sworn in or recognized as clerk of the court, and the judge of that court refused to administer the oath to or approve of Comstock’s official bond. At the June term of this court a mandamus was granted requiring the judge of said Superior Court to administer to Comstock the constitutional oath of office and approve his official bond, which was done, and Comstock then entered upon the active discharge of the duties of his office. From the time of his election up to the 1st of July, 1878, when the office was turned over to him, he was at all times ready to perform his official duties, but was prevented for the reasons stated. The county clerk who had during this time ex officio performed the duties of clerk of the Superior Court, presented his claim for the salary per- taming to said office during said time.' Comstock also presented a claim for the salary during the same period. The common council refused to pay either, and this action is brought to recover the amount thereof. Comstock was legally elected clerk of the Superior Court, and was, upon taking the official oath and filing the requisite bond, entitled to the office with all its emoluments. The county clerk, by virtue of his office as such,'was no longer the clerk of the Superior Court, and although he may have acted in good faith, yet that would not entitle him to the salary pertaining to the office as against the person legally entitled to the office. Had the salary been paid to the de facto officer the present plaintiff might have sued and recovered the amount thereof from him, and surely he may recover the same directly in the present action. The salary belongs to the person who is rightfully and legally entitled to the office, and if he is ready and willing to perform the duties thereof he cannot be deprived of the salary by an intruder when it has not been already paid. People v. Miller, 24 Mich., 459. The judgment must be reversed with costs and a judgment entered for the amount claimed ($222.22) with interest thereon from July 1st, 1878, in all $230.73. The other Justices concurred.

Marston, J. The bill of complaint in this case was filed for the purpose of foreclosing a mortgage alleged to have been'executed by defendant and delivered to Calvin T. Burnett now deceased. Calvin T. Burnett during his lifetime resided in Washtenaw county. He was the owner of a tract of land in Livingston county, upon which the defendant and his sister were living. It is claimed on behalf of the complainant that Calvin T., wishing to divide this tract. between defendant and his sister, pursuant to an agreement previously made, had a deed of conveyance of the north half thereof to defendant and one of the south half to his sister prepared at Ann Arbor; that he and his wife, the present complainant, took said deeds and visited their son and daughter where they resided upon said lands; that while there and upon the 18th day of February, 1873, said deeds were properly executed, and that at the same time two mortgages, one from defendant and one from his sister to said Calvin, were by them respectively executed to secure certain notes, those given by defendant being one for $4,300, being the one in controversy, and another for $4,000. This second note under a separate agreement made at the same time was to be considered as an advance to the defendant towards his share of his father’s estate, and to be accounted for in a certain manner. It is also -claimed that the deeds, mortgages and notes were at the time of the execution thereof retained by said Calvin T. who was to have the same recorded, but which was not done. Calvin T. Burnett died February 6th, 1877. After his decease the deed to defendant was offered him but he refused to accept the same, and the administratrix, on February 14th, 1877, .caused- the deed and mortgage to be recorded. The defendant in his answer admits the execution of the notes and mortgage; that $500 of the note in controversy. was for personal property which he had purchased from his father; that the deed executed by his father to him of the land was not delivered nor- intended to be; that his father was to keep said deed, notes and mortgage, and agreed not to record the same, but would wait and see how defendant managed the property, and if not satisfactory that the papers could be destroyed. The evidence is conflicting. Mrs. Burnett, the complainant, who was present at the time the papers were executed, says: “My husband was to take care of the papers and put them on record at his own expense. He was to see that they were put on record. My husband took them home with him.” She farther gives as a reason why they were not at the time placed on record, was that they were to go home by way of Howell and have them recorded, but the sleighing was going off and they got home as quick as they could. She farther-testified that her husband three years before his death and again one year before, told her that if the papers were in his possession at the time of his death, to have them recorded, and handed over to the proper parties. Mrs. Burnett’s daughter Mrs. Webster, who was present at the time the papers were executed, gives the same version, that Calvin T. Burnett was to take the papers, have them recorded, and then send the deeds to the proper persons, the grantees. The justice of the peace who took the acknowledgment and others who were present and who on other-occasions had conversations with Calvin T. fully sustained the position set up in the answer of defendant. Which under all the circumstances is the more probable and correct view ? It is conceded .that Calvin T. Burnett was a good and prompt business man, while defendant was somewhat addicted to the use of intoxicating liquors, and it is now said that it was on this account and to prevent the defendant from squandering the property that the deed and mortgage were not recorded. It is clear from the testimony of' Mrs. Burnett and her daughter that there was no formal delivery of this deed to the defendant. There is not the slightest testimony in the case tending to show that he had at any time possession or control of the deed, though for never so short a period. All we have then from which we can find that a sufficient delivery was made is the statement made by the grantor, admitting such a statement to have been made, that he would retain this deed, have it recorded and then send it to the grantee. Had this been done, perhaps no question would have arisen. This, however, he did not do, but knowingly retained possession of all the papers tip to the time of his decease. This we think falls short of showing a delivery. It is said, however, that defendant took and remained in possession of the real estate and made payments on the mortgage, and that he is thereby estopped from disputing the validity of the deed. Prior to the execution of this deed defendant was in possession of this land, under a three years’ lease from his father. He continued in possession, and the payments made were, we think, as now said by him, to have been for the personal property which he purchased and in payment of rent of the premises. The retention of all these deeds, notes and mortgages by Calvin T. Burnett and not placing them on record is consistent and harmonizes with the agreement as testified to by the justice and others, and- is inconsistent with the other view. From an examination of the evidence in the light of all the surrounding circumstances, we must come to the conclusion that the deed was not delivered, and that the agreement was in substance as set up by defendant in his answer. It follows, therefore, that the decree of the court below must be affirmed with costs. Campbell, C. J., and Graves, J., concurred. Cooley, J. It appeal’s that the intestate some years ago made an arrangement under which he deeded land to George F. Burnett, his son, of which about one-half the estimated value was to be an advancement, and for the remainder the son was to give a ten per cent, mortgage. It is probable from the evidence that the father planned this arrangement alone, but it was - carried out by the parties so far as the execution of the papers was concerned, and the mortgage was executed by the son with accompanying notes and delivered to the father. The only question concerning the transaction is, whether the deed was ever delivered. It does not clearly appear that the deed was ever placed in the son’s hands, but I am not satisfied that at the time any of the parties supposed the transaction remained incomplete and unconsummated. The father who lived at a distance from the place where the papers were executed, took the deed away with him when he returned home, and it was found unrecorded among his papers after his death. His widow testifies that he took it merely for the purpose of putting it upon record, which he was to do at his own expense; and she says an accidental circumstance, which she explains, prevented his going to the register’s office on his return home. The value of the land has depreciated greatly since the transaction took place, and on the death of the father it is found not to be for the interest of the son and daughter to claim under the deeds made to them by the father. And now the son being called upon to pay the mortgage he gave upon the land described in the deed to him, he refuses to do so, and insists that the title was never conveyed to him, because the deed was never formally delivered. The daughter makes no question that the transaction with herself was complete, and as a witness in the case she gives evidence which would make out a transaction equally complete between her father and her brother, this defendant. There are two facts in this case which to my mind are more conclusive than all the testimony of witnesses as to their understanding of the purposes of the parties in executing such writings. One is that the daughter, although it was greatly for her interest to take the same position that the son takes here, did not understand she was at liberty to do so, but admits that the transaction was what on its face it purported to be. The other is that defendant for two years paid in full the interest on his mortgage, thereby admitting its validity and obligation. And it seems to me exceedingly unsafe to set aside the just inferences from such unequivocal acts on such doubtful and contradictory evidence as we have concerning what took place when the papers were executed.

Cooley, J. In December, 1875, Crouse was indebted to the plaintiffs in the sum of $1,131.50, and was also indebted to others beyond his ability to make full payment. Under these circumstances he made to his creditors a proposition for a compromise, the substance of which - was that he should pay fifty per centum of his debts and be discharged from the payment of the remainder. ■ A certain sum was to be paid immediately, and for the remainder secured notes were to be given at three, six and nine months, with interest. The method of security was agreed upon, but we need not give the particulars here. Plaintiffs accepted the proposition December 13, 1875, on condition that they were to receive their proportion free from any expense, and to retain possession of the notes evidencing their claim until the compromise sum was paid. The compromise proposition of Crouse was not in all particulars carried out by him to the letter, but plaintiffs received two small payments on their proportion without any objection. In May, 1876, the attorneys for Crouse made a further small payment which plaintiffs received, but at the same time called attention to the fact that the terms of the compromise were not being strictly complied with. The payments then amounted to only twenty-five per centum of their claims, when they should have received by that time thirty-three and a third per centum, and they had not received secured notes or any payment of interest. June 5, 1876, another small payment was made to them and six days later still another, both of which were received without objection. Sept. 22, 1877, the attorneys for Crouse sent to plaintiffs their check for $284.89, which was the balance of the fifty per centum, including interest, but plaintiffs refused to receive it and returned the cheek. The present suit was then brought upon the original indebtedness. The declaration contained the common counts only. The reason assigned for declining the final payment is the failure on the part of Crouse to comply with the terms of his proposition. The facts above recited show that strict compliance had never been insisted upon, and that although attention was called in May, 1876, to the fact that the terms of the compromise agreement were being departed from, yet two payments were subsequently received without objection. At that time it is plain that plaintiffs would be held to have waived a right to insist upon strict compliance, and the subsequent delay was nob considerable. The offer of final payment wag made before the expiration of nineteen months from the date of the compromise, and if payment of what remained of the fifty per cent, had then been legally tendered, the plaintiffs, under the circumstances, would not have been at liberty to treat the compromise as having been abandoned. A formal tender of payment was not made, but a check was sent which the plaintiffs were at liberty to receive or reject at their option. They chose to return it, but there is no pretense that they did so because they objected to that mode of payment. Indeed the' previous payments had been made in the same way, and been received without objection. Plaintiffs are therefore not in position to insist upon the failure to offer payment in money as a failure to complete or offer to complete the compromise. But on the other hand, defendant is in no position to claim the benefit of a formal tender as a bar to the action, for his attorneys received back their check, and nothing was done afterwards which would have kept good a formal tender if one had been made. The action proceeded to a trial, and plaintiffs had judgment for the amount of their original demand, after deducting the payments which had been made under the compromise. The court, however, set aside this recovery and .granted a new trial on certain conditions, one of which was. that defendant bring into court the sum of $284.89, the amount to which plaintiffs were then entitled under the compromise. The money was paid into court in compliance with this order, and a new trial was had. On .the second trial the defendant had judgment. From what has already been said, it appears that he would have been entitled to this judgment had the $284.89 been tendered by him to the plaintiffs, and the tender been afterwards kept good by bringing the money into court. But no tender had been made, and no money had voluntarily been brought by him into court. Moreover, the order requiring the $284.89 to be brought into court, did not place it at -the disposal of the plaintiffs, and the recovery, if allowed to stand, would be conclu sive that they are not entitled to it. The recovery is consequently erroneous. Plaintiffs should have had judgment for the amount owing under the compromise agreement, and for costs of suit. The judgment must be reversed with costs and a new trial ordered. As this opinion covers the whole case, the parties will probably be able to dispose of it without further litigation. The other Justices concurred.

Graves, J. This action was brought against Estey as surety in the replevin bond given by one Nestle in a suit by the latter against Harmon. In that case the jury returned a general verdict in favor of Harmon, but instead of entering judgment in legal accordance with this finding, the court determined, as we view the record, that the general title to the property was in the plaintiff, and that the defendant had a lien upon it amounting to $167.50, and being less than the value of the property, and thereupon on motion of the attorneys for the defendant and by the consent of the attorneys for the plaintiff gave judgment that the defendant should recover of the plaintiff the amount of said lien with costs. It is objected that this judgment was not in substance the determination of the tribunal, but was in essence and effect the mere embodiment of a side bar arrangement of attorneys in the form of a judgment; that the result was not attained or aided by judicial consideration and hence is not one competent to bind the plaintiff in error as surety in the replevin bond. We cannot concur in this view. We are compelled to act upon the record as we find it, and are not at liberty to listen to extrinsic statements or explanations which alter or impugn it, and upon its face the entire matters lea^pg. to the final order for recovery appear to have been ascertained and settled by the court, including the amount of defendant’s lien, whilst this order seems to have been made on the motion of the attorneys for defendant and upon the assent of the attorneys for the plaintiff. All the materials for the judgment appear to have been ascertained by the court in a lawful mode and the final result is not perceived to be illegitimate. The judgment must be affirmed with costs. The other Justices concurred.

Campbell, C. J. Davis, who lives in Jackson, sued plaintiffs in error for damages sustained by their wrongful delay in failing to sell á consignment of wool until the price had fallen largely after they received it for disposal. The wool was shipped June 15, 1875, and received by the consignees in Boston June 21. The earliest sale they made was August 4, when they sold a few bales at 56 cents on 60 days time. The next sales were in December at 50 cents, and the remainder in January, 1876, at 43, and in March, 1876, at 40, also on 60 days time. The evidence tended to show that there was a difference between Jackson and Boston prices of about five cents, and that wool was worth in Boston 56 or 57 cents at the date of shipment. On the 27th of May, 1875, Davis wrote to the defendants Howland, Luce & Co. of Boston stating he had on hand about 8,000 pounds of wool, — light, delaine, and combing, — and inquiring what they could sell it for, and what they would advance on it, and their commission. They replied that they would advance 40 cents; that their commissions were 5 per cent, and 7 per cent, interest on advances, and that the wool would bring 55 cents for delaine and 62 to 65 for combing. When the wool was shipped Davis drew on the consignees for $2,700, and ordered them to sell on their judgment of the market unless otherwise advised. A few days after the shipment, Manning, one of the consignees, was at Jackson, when Davis informed him of the consignment, and told him he wished the wool sold at once, even if it should go for a little less than market price, and asked him to write to his house to that effect, which he promised to do. At the time of service of process in this case it was in evidence that Manning admitted he did write, and that he did not know why the wool was not sold. The jury found a verdict for $835, which appears to be on the basis of 56 cents a pound as the price which should have been obtained. An objection was made below that there was no evidence of value in the case on which the jury could act. But there was evidence of value at time of shipment, and evidence of a sale in August for 56 cents. We think this was enough, in the absence of any counter proofs, to show that 56 cents could have been obtained in the interval. The principal defense, however, rested on the ground that the declaration averred the directions for immediate sale to have been given at the time and place of ship ment, and that the evidence of a subsequent direction, which was duly objected to, was a variance and not proper. We do not think this ground can be maintained. The declaration declares on the agreement of shipment as it really was, under orders to sell as they should be directed. It then avers under a videlicet a delivery and shipment' and orders to sell immediately, — all these facts being averred' as of the day and year aforesaid. We do not think these averments can be regarded as so far descriptive of time and place as to admit of no deviation. Except in describing a written instrument which bears a written date, such averments of time cannot in general be held material. Under this declaration Davis assumed the burden of proving, and did prove, directions to sell, brought home to the consignees. Their partnership was 'admitted, and notice to one was notice to all. Moreover, the testimony showed that the partner so notified undertook to inform and did inform his co-partners. The written instructions to the consignees to use their own judgment were themselves subject to be qualified if' /‘otherwise advised.” And the fact that they had made advances could not justify refusal unless sales were directed on terms which would prejudice the consignees. We think there was no error in the rulings and that the judgment must be affirmed with costs. The other Justices concurred.

Cooley, J. The defendant in error in 1865 effected with the plaintiffs in error an insurance upon his house and household furniture, subject to the payment of such assessments as should be made by the company from year to year to meet losses suffered and expenses incurred. In February, 1875, the house and furniture were destroyed by fire. At that time there were two unpaid assessments of which defendant in error had been notified. One of the by-laws of the company provided that where the assessments were thus over-due and unpaid, the assured should forfeit all claims against the company for any loss or damage sustained during the delinquency. Immediately after the fire Bowen paid up the assessments to the local agent of the insurance company, who received the amount with knowledge of the loss, but forwarded the money to the company without mentioning the fire of which the officers at that time had received no notice from any other quarter. March 16, 1875, the board of directors of the insurance company adopted a resolution “that the secretary and chairman of the board of directors be instructed to draw an order on the treasurer in favor of William Bowen for the amount of Bowen’s loss, on the recommendation of the auditing board, when said loss is adjusted.” It would seem that after this resolution nothing was. open but the question of the amount of loss. The company had received payment of the assessments, and waived any objection to the delay in paying them in the most formal manner possible. Yet on the second of April following the board passed another resolution that they did not consider the company liable on account of the non-payment of the assessments. An adjustment of the loss was therefore refused. The circuit judge was quite right in holding the company bound by its reception of the assessments and recognition of the loss. The technical objections made on the trial are either unimportant, or they have m> merit in point of law. A letter from plaintiff’s attorney, written before suit was brought, was offered in evidence, apparently to show that he did not suppose the company was liable, but what importance his opinion. could have in the case we are not informed, and the circuit judge was unable to discover. Yery properly he excluded its being submitted to the jury. The judgment must be affirmed with costs. The other Justices concurred.

Marston, J. Tbe principal question raised in this case relates to the constitutionality of tbe statute which authorizes probate courts to appoint commissioners to pass upon claims against tbe estates of deceased persons. It was argued that by tbe constitution all judicial power was exclusively given to tbe courts and persons named therein; that commissioners were not included, although tbe power given and exercised by them under tbe statute was clearly judicial. That such commissioners act in a certain sense judicially in tbe allowance of claims, has been repeatedly recognized by this court. Fish v. Morse, 8 Mich., 34; Clark v. Davis, 32 Mich., 157. It does not necessarily follow, however, that the stat ute under which they act is in violation of the constitution. As was said in Streeter v. Paton, 7 Mich., 347, such legislation is older than our present constitution. The validity of such legislation and of the proceedings of such commissioners has been recognized and acted upon in very many cases, so that at this late day, it would require a clear showing to justify a construction which would be contrary to the long and well settled practice. In the case last referred to it was said: “By courts, as the word 'is used in the constitution, we understand permanent organizations for the administration of justice, and not those special tribunals provided for by law, that are occasionally called into existence by particular exigencies, and that cease to exist with such exigencies.” The same distinction was noticed in Underwood v. McDuffee, 15 Mich., 366, where the term “officer,” as used in Art. 18, § 1 of the constitution, was said to apply and refer to such offices as have some degree of permanence, and are not created by a temporary nomination for a single and transient purpose. It is clear, under the construction given the constitution in these cases, that the statute in question is not open to objection. Commissioners are appointed to act in a given case, and not generally; their appointment is temporary — for a single and transient purpose — and when they have acted in a given case, their powers cease. The conclusion arrived at by them, where within their power, if not appealed from, will be final and conclusive; and all claims in favor of or against the estate must be presented to and passed upon by them, and cannot be withdrawn from their consideration, to be adjudicated upon elsewhere. Green v. Probate Judge, ante, p. 244. If there was any objection, growing out of the statute of limitations, to the validity of the claims passed upon, it should have been raised before the commission ers or on appeal, and cannot properly be considered in this action. * The judgment must be affirmed with costs. The other Justices concurred.

Campbell, C. J. This is a bill filed to obtain an offset of a judgment against Mrs. Elsam upon a judgment subsequently recovered by her against complainants. The judgment against her was in assumpsit for $91.29 damages and $6.75 costs, rendered April 16, 1877. Her judgment was for false imprisonment under that judgment, and is averred to have been rendered February 7th, 1878, for $100 damages and $58.50 costs. This judgment she assigned February 8, 1878, to Eiley and Coffinberry for .services rendered and to be rendered. Complainants claim they have a right to have the judgments set off without regard to the claims of the' attorneys. This matter was before us at the June term on application for a mandamus to compel the set-off on motion made in the circuit court of St. Joseph county, where the application was denied. We were of opinion the decision on such a motion could not be reviewed. ' People ex rel. Wells and Calam v. Judge of Circuit Court for St. Joseph Co., 39 Mich. The practice of setting off judgments either on motion or otherwise, except when suit is brought on one of them, is one upon which there is considerable difference of opinion. There is not much support for it in the old practice in chancery as a ground of original jurisdiction, and it- is not clearly explained in any of the elementary treatises. In several of the American States it has been recognized' as within the general powers of equity, and in New York especially it seems to have obtained such a foothold that in some of the cases referred to in our former decisions it is set down as a matter of right. ■ We have in this State a statute governing the set-off of executions which lays down certain principles to govern the application of the several claims against each other. This statute, when an execution is placed in the hands of an officer, authorizes the debtor therein to place his execution against the creditors in the hands of the same officer, without regard to its direction to him or to any one else, and directs the terms of set-off very fully. Comp. L., § 6125. It is difficult to see what occasion there is, with such a statute, to resort to any other remedy. Without deciding how far it has abrogated other remedies, we are clearly of opinion that no other remedy can place the moving -party in any better position than where that law places him. Under that statute an assignee in good - faith before the second execution creditor became entitled to the sum due on it, is protected, and it is also provided that so much as is due to the attorney in the first case for his taxed costs and disbursements, shall be allowed him. At the time this statute was passed the law provided certain - taxable fees to attorneys. In ' 1867 all laws restricting or regulating agreements with attorneys for compensation were abolished, and the taxable costs made payable to the parties, who are allowed to make such agreements for compensation as they see fit. Although some courts in their practice upon setting off judgments have not deducted the costs of attorneys, yet such we think was the better practice, and the statute plainly designed to enforce that principle. Compensation by agreement has now taken the' place of taxed costs; and this has been expressly recognized in New York under a similar statute. In Rooney v. Second Avenue R. R. Co., 18 N. Y., 368, the Superior Court of New York vacated a satisfaction of a judgment unless the defendant should pay to the plaintiff’s attorney the taxed costs. On appeal to the Court of Appeals by the defendant, the court refused to disturb the order, but' declared that it had not gone far enough. It was held that since under the code, as under our present statutes, the attorney could agree upon his compensation, that agreed sum remained a charge or lien on the judgment in the same manner as the old taxed costs, and that he was still as formerly to be regarded as equitable assignee of so much of the judgment as was necessary to pay him. The court said the attorney should have been given his whole claim, but that the order could not be modified in his favor because he had not appealed. We think this decision is in strict accordance with the manifest purpose of the statute, and we do not think it necessary to discuss the many discordant cases which have been cited on the general practice. The statutory principle will clearly protect these defendants, and it is no more than justice requires. There is no averment in the bill that after any proper claims of the attorneys are satisfied the balance left would exceed one hundred dollars. Assuming, therefore, that under our statutes there is any propriety in resorting to equity without special and peculiar reasons, we think there is no ground on which the present bill can be sustained. The decree below dismissing the bill must be affirmed, with costs. The other Justices concurred.

Campbell, C. J. Relators upon an affidavit made in their joint behalf1 as husband and wife obtained a~ certio ran to review the proceedings of respondent in reloeating a certain ditch, whereby they claim damage accrued. The chief grounds of objection related to the absence of any adequate record. It now appears that the commissioner was delayed in making up his record by other engagements, and that John N. Eoediger knew of most if not all the proceedings, and took a contract to dig, and did dig, part of the ditch. The action of relators here is joint, and it is to be presumed their interest was the common-law tenure of husband and wife, wherein the husband was always the proper person to represent the estate. We are not called on to decide how far he may bind his wife now, because in this case the proceeding is on behalf of both, and she cannot stand in any better position than her husband in this court. As a matter of fact there is reason to believe she knew as much as he did. But we do not care to inquire closely into this, which would be conjectural. Neither shall we look into the law questions. It is very certain that unless in a case where the remedy is one which courts have no right to refuse, such conduct in a relator as appears in this record should prevent him from being heard to complain. The proceeding by certiorari is subject to discretion, and should not.be allowed to be enforced where the equities are so much against it as they are here. Matter of Lantis, 9 Mich., 324; Farrell v. Taylor, 12 Mich., 113. The writ must be quashed with costs as improvidently granted. The other Justices concurred.

Graves, J. Merrick was under-sheriff and received an execution for collection against Mayhue. It was issued out of the circuit court on an entry of judgment therein in favor of one Thomas Snell and against defendant in .error, and which entry was founded on a transcript made by Samuel T. Cantelon, a justice of the peace. He seized a pair of colts and some other animals on the execution and Mayhue instituted this action of replevin and retook the property. At the trial the only subjects of controversy were whether the judgment given by the justice in favor of Snell was void for want of jurisdiction, and if not, then whether the. omission of the affiant’s signature to the affidavit made to show that Mayhue had no goods and chattels in the county liable to execution, invalidated the transcript.The circuit judge instructed the jury that there was no valid judgment before the justice-and directed a verdict in Mayhue’s favor. Merrick brought error. There is no occasion to inquire to what extent and in what way a levy under a transcript execution may be assailed by objections to the proceedings before the justice. The circumstances of this case are such as to spare discussion on that subject. The transcript was entitled “Thomas Snell vs. Peter Mayhue,” and was in due form. The original summons issued by the justice on the 5th of August, 1874, and returnable “ on the 15th of August, A. D. 1874, at one o’clock in the afternoon,” was regular. It was returned personally served by the plaintiff in error. His certificate on the back was in these terms: “I hereby certify that I have personally served the within summons on the within named defendant, by reading the same and by giving a copy, on. the 5th day of August, 1874.” This contained the evidence of service to entitle the justice to act, and no one questions its yorvma fade sufficiency. Mayhue employed counsel to defend and delivered to his counsel a paper he represented to him as the same Merrick had given as a copy of the summons. It is not needful to examine what is claimed to be a showing that this paper so handed to counsel was the same Merrick delivered as a copy of the original summons. Let the fact be conceded. The paper contained a palpable error. It specified one o’clock in the forenoon of August 15 instead of onei o’clock in the afternoon as the time for appearance. Mayhue’s counsel taking this paper with him got the' justice out of bed at midnight, and the form of calling-the case was soberly gone through with at one o’clock in-the morning, and an entry of non-suit made. Of course this proceeding was void. The true time for appearance had not arrived, and this nocturnal manoeuvre was without effect to anticipate it. The original summons containing the correct hour must have been-read to Mayhue, and it would be going far to say that the error in the copy misled him and caused him to. suppose the time for appearance had been fixed at one •in the morning. However this may be, the record establishes that if he was thus misled at the moment and caused to believe that the time specified in the copy was not a mistake, he was fully and regularly apprised and in due season to protect himself, that the time in the copy was incorrect, and that the true time was one o’clock in the afternoon. His counsel testifies that subsequent to the proceeding taken at one o’clock in the morning and in the same forenoon he saw the original summons and read it and saw it was returnable at one o’clock that afternoon. There was no want of opportunity, therefore, to appear in the case and make objections. He knew the time given in the copy was a mistake on the part of the sheriff, and he was aware of the true time fixed for appearance. If entitled to rely on the accuracy of the copy of the summons in the first place, he could not continue his reliance so far as to disregard the suit entirely, and reserve his objections for a collateral proceeding, after having seen the original summons and ascertained the truth in due season to make all objections in the same case. ■ Whatever influence the defect in the service might have had under other circumstances, it became a mere irregularity. It is claimed that the judgment as originally entered up by the justice was entitled “Thomas Snell vs. Peter Mayo” and not “Peter Mayhue,” as in the transcript, and that this is a fatal objection. The point is without merit. The record leaves no room for any question of identity in fact and the means were supplied to spell the name properly. The first process was against Peter Mayhue, and if the entry made by the justice was not accurate it was competent to make it so by following the summons, and in making out the transcript he seems to have acted in that way. The objection to the affidavit made preliminary to the transcript because the affiant failed to sign is overruled by Dickinson v. Simondson, 25 Mich., 113. Besides the cases there cited, see Soule v. Chase, 1 Robertson, 222, and In re Howard, In re Ashcroft, L. R., 9 C. P., 347: 9 Eng., 436. The case in Bobertson has been reversed, but without affecting the point here. There are no other questions deserving notice. The record shows, that the court erred to the prejudice of plaintiff in error, and the judgment must therefore be reversed with costs and a new trial ordered. The other Justices concurred.

Graves, J. The plaintiffs in error acting under authority of the officers of the school district proceeded to remove the school house from the site it had some time occupied, and defendant in error who held the fee simple of the site sued them in trespass. The case was sent to a referee, who found the facts and held as matter of law that Mrs. Smith was entitled to judgment for five dollars and costs of suit. The circuit court affirmed the report and entered judgment accordingly, and defendants brought error. The case appears plain. It is true Mrs. Smith had not leased the site, and in fact claimed the building and the right to enter. But the finding, we think, is clear that at the time of the alleged trespass, and for some years prior thereto, the district was in the actual entire and undisturbed possession. Such being the ease, the act of the plaintiffs in error under the authority of the district was not an act of unlawful force or of trespass against Mrs. Smith or any body else. Her possession was not disturbed, because she had none. The action was not maintainable. 1 Chitty’s Pl. [16 Am., from 7 Eng. ed.], pp. 71, 72 et seq.; Cooley on Torts, 437, 438; 1 Addison on Torts, 302, 289, 290; 2 Hilliard on Torts, 14. The judgment must be reversed, and one entered here for plaintiff in error with costs of both courts. The other Justices concurred.

Cooley, J. In June, 1874, Dwight Nims and Ann, his wife, gave to the defendant Vaughn a mortgage on six acres of land platted into city lots in Grand Eapids to secure the payment of $4,400 in two years, with ten per centum interest. The sum named in the mortgage was made up of about $4,000 money loaned and about $400 expenses and services in examining title, etc. In the course of the negotiation, but at precisely what stage is in dispute between the parties, Vaughn signed and delivered to Nims the following paper: “ Whereas, Dwight Nims and Ann W. Nims, his wife, has this day executed a mortgage to me upon a certain six acre parcel of land in the county of Kent, in which said mortgage it is provided that in case they Shall sell any part of the said six acres and shall turn over to me satisfactory security in lieu thereof, that I shall release the parcel so sold from the lien of said mortgage. Now, therefore, it is further agreed that the first three city lots which they may sell out of said six aeres, I will release the said lien thereof without the turning over of security, as in said mortgage provided, and without any additional security. Dated Jackson, Mich., June 27th, A. D. 1874.” It is claimed by Vaughn that the promise contained in this paper was wholly a voluntary promise on his part, and therefore not binding upon him, while Nims claims, and has shown to our satisfaction, that it was executed and delivered as a part of the principal transaction of making a loan and giving security. The estimated value' of the six acres at that time was more tha-h double the amount of the mortgage, and it is not proba He that Vaughn supposed he was endangering his security by giving the promise above recited. Nims did not pay the first instalment of interest, and in July, 1875, Vaughn commenced proceedings to foreclose the equity of redemption. In September, 1875, Nims, as he believed, negotiated a sale of three city lots of the six acres to one Brown, conditional on obtaining a release from the Vaughn mortgage, but Vaughn, on being applied to, refused to release. For this refusal Vaughn seems to have assigned two reasons: first, that Nims had made no payment on the mortgage; and second, that Nims was then interposing the defense of usury in the foreclosure suit. As neither of these would have been a valid excuse under' the agreement, the refusal may be regarded as absolute. In June, 1876, Nims sold and conveyed the same lots to his son Frederick A. Nims, his co-complainant in this suit, for a consideration of $600. Vaughn obtained decree for foreclosure in December, 1876, which was appealed to and affirmed in this court. Vaughn v. Nims, 36 Mich., 297. The present suit was then commenced. The purpose of this suit is to compel Vaughn to release the three lots conveyed to Frederick A. Nims in accordance with his written contract. The circuit court decreed a release. Vaughn has appealed. Besides insisting that his promise was nudum pactum, he claims first, that the decree is in violation of the spirit of the agreement, which was only to release to actual purchasers contemplating settlement and improvement whereby his security would be improved; second, that Vaughn was not requested to release before suit was brought, and therefore should not be compelled to do so; third, that the decree in the foreclosure suit is a bar to this; and fourth, that the bill is one for the specific performance of a contract, and its prayer ought to be refused, not only because Nims has not performed on his part, but because the agreement itself is unequal and unfair. Chambers v. Livermore, 15 Mich., 381. Some minor objections to the decree are also made which we do not think require special notice. I. It is highly probable that the parties contemplated that all sales made from the land would tend to increase the value of the remainder, and also that Nims would pay upon the mortgage what he should receive on.sales; but Vaughn did not stipulate for this, and we cannot say that the principal transaction would ever have taken place had this agreement not been given substantially in the form in which we now find it. We cannot now import into the agreement new terms to which when making it the parties might not have assented. And the fact that Vaughn required further security in case of additional sales, but not in case of sale of the first three lots, is cogent evidence that the parties deliberately framed their stipulations as we now find them. In conscience Nims ought to have paid over to Vaughn whatever he might have received on the first sales, but Vaughn saw fit to trust to his honor, and we must leave him to that reliance. II. If Vaughn refused absolutely to release at the time of the negotiation with Brown, assigning no reason that did not exist afterwards when conveyance was made to Frederick A. Nims, we do not think a further demand was necessary when that conveyance was made. Frederick A. Nims had no reason to expect that the demand, if made, would be complied with,, and under the circumstances was excused for not making it. III. The questions now in issue were not involved in the foreclosure suit, though doubtless they might have been brought before the court by cross-bill. The fact of that suit has therefore no importance in this case. IV. Whether or not the contract was unequal and therefore unjust, we have no means of determining because we cannot know exactly what importance it had in the negotiations of the parties, nor how much Nims may have conceded to obtain it. The evidence in the case shows very plainly that if enforced now it will ope rate .severely upon Vaughn, for since 1874,, while the debt of Vaughn has been steadily increasing, the value of the land has been steadily diminishing, and it is conceded that the mortgagor is irresponsible, and that nothing beyond the land can be obtained in enforcing the securities. But this is a risk that the mortgagee took when taking the papers; he drove what seemed to be a somewhat hard bargain at the outset, and cannot have his contract reformed to relieve him from an unexpected hardship attributable to general business depression. The contract must be construed and enforced precisely as it would have been if the value of the land had increased instead of diminishing. The real case in controversy seems to be this: A mortgagee has taken security upon several lots of land which apparently are more than sufficient to protect him, but- has agreed with the mortgagor, as a part of the transaction, that the latter may withdraw from the lien the first three of the lots he may have an opportunity to dispose of. Afterwards the mortgagee refuses to perform his agreement, insisting upon its invalidity, and upon various excuses, none of which has force. We see no alternative but to hold him to his agreement; and as the circuit court has done so, the decree will be affirmed with costs. The other Justices concurred.

Gratos, J. This is a ease made after judgment. The facts were found by a referee who reported adversely to the plaintiff and upon her exception the circuit court overruled the referee in point of law and awarded judgment upon his finding of the facts in favor of the plaintiff for $250. The defendant charges error. The parties were formerly husband and wife; but having been divorced they entered into a written agreement as follows: “It is agreed by and between Aaron Courtright and Theresa Courtright (who is divorced from Aaron) as follows: that Frank, Kittie, Nellie, of their children may remain and stay with said Theresa such portion of time as they shall naturally desire henceforth after this date, with the express understanding and agreement on the part of Theresa Courtright that she will make no charge or claim against the said Aaron Courtright for their support, and in consideration thereof the said Aaron agrees that they may remain as aforesaid, and that he will of his own free will do for them towards their support, maintenance and education what seems to him right, and at least he will provide in store pay and provisions each year for five years an amount in value equal to fifty dollars. Witness our hand February 28th, 1871. Aaron Oourtright. Theresa Oourtright.” The plaintiff’s action depends on this instrument. The daughter Kitty remained with her mother about a year, Nellie during a chief portion of six years, and the son Frank about three years. The defendant expended for the benefit of the children $434.11, but paid nothing to the plaintiff. Whilst the children were with her, however, she was called on to give them her personal care and personal protection, and this duty was wholly distinct from the duty to support them. The defendant was subject to a legal obligation to provide for their support, and as against the public and the children he could not throw off the duty. The plaintiff was competent to agree that she would make no claim against him for their support, and she so promised. But this did not necessarily touch her chance to raise some claim in consideration of her personal care and attention. The instrument relied on is ambiguous and there is much difficulty in ascertaining its sense. It was made -by these parties, however, as something which had their full assent, and there must have been an intention that in all its parts it should have practical effect, and unless it contemplated that the plaintiff should have rights under it capable of enforcement in a court of justice, a portion of it is without any force whatever, because it contains a positive promise to contribute fifty dollars per year, and it is plain that no one except the plaintiff can sue on it. After much consideration we incline to the opinion the defendant became bound in law to pay the plaintiff fifty dollars a year for five years; not as support due" the children, but as something in the nature of recom-| pense for her assumption of the sole personal care of the children. Whilst they should remain with her no part of this duty would be for him, but the whole of it would rest on her, and it is not unreasonable to suppose that this consideration induced this promise in her favor. It was not meant as a proanise to her that he would support his children or would pay her for supporting them. But there is room for saying the design was that she should have $50 per year at least, in the form expressed, for her personal care and attention to the children, he in the meantime not having any duty of that kind to bestow. This view accords with justice and at the same time is consistent with the judgment of the court below. The judgment must be affirmed with costs. The other Justices concurred.

Marston, J. Judgment was recovered against Bryant in justice’s court in a suit commenced by attachment, in which case the bond filed had but one surety. Execution was issued upon this judgment returnable “within sixty days,” and certain property levied on by virtue thereof by Hendee, who was a constable. Bryant replevined the property in the circuit court; the case was by consent referred; the referee made a report, •which did not find the special property which defendant had in the chattels; upon a showing made, the court, against objection, referred the matter back for the purpose of having the omission supplied, and upon a farther report coming in, judgment was rendered thereon in favor of the defendant to the amount of his lien under the execution upon the property. The objections urged in this court may be stated as follows: That the justice did not acquire jurisdiction because the attachment bond had but one surety; that the execution was made returnable within the period authorized by the statute; that the property was exempt from execution sale, and that the circuit court could not, after the referee had made his report, and no exceptions had been taken thereto, send the case back for correction by adding thereto matter inadvertently omitted. From the report of the referee as first made, it clearly appeared that the defendant held the property by virtue of an execution issued upon a judgment rendered by a justice of the peace against the plaintiff in this case, and that on the trial before the referee this execution was offered and admitted in evidence, with the judgment, and by him returned with and as a part of his report. The omission therefore to find specifically the amount of the lien claimed by the defendant as an officer by virtue of the execution, having been shown to be an inadvertence, and it being a matter that could be corrected from the report then made, we think the court in furtherance of justice had power to order a correction. It might admit of some doubt whether, within the case of Smith v. Warner, 14 Mich., 158, the order of re-reference could be sustained to the full extent thereof; but as no such objection was made, and the report was corrected in the manner indicated from the evidence previously given, we need not pass upon the question. A brief reference to the other questions raised is all that is necessary. The justice’s docket shows that “the parties appeared and answered” on the return day of the writ. This certainly gave the court jurisdiction of the parties, and enabled him to render a valid judgment in the ease. When this was done, an execution issued thereon, and a. levy made thereunder, the officer would hold the property thereafter under the execution, and in an action of replevin brought for the property while so held, defects in the attachment proceedings would be immaterial. It was said, however, that the parties did not appear on the return day as set forth in the docket of the justice. This may have been so, but the referee does not so find, nor does he find that the property was exempt from levy and sale. He reports facts from which possibly he might have drawn such a conclusion, but his finding is distinctly otherwise. In the body of the execution the officer was directed — “and the same return to me within sixty days, to be rendered to the said Joseph,” etc. The officer had the full sixty days in which to make return to this execution. Even could we say that he could not keep it the full period of sixty days before .making return thereto, still the importance thereof would not be apparent in this case. The judgment must be affirmed with costs. The other Justices concurred.

Marston, J. We are clearly of opinion that the court erred in withdrawing this case from the consideration of the jury. It is not very important whether we call the transaction between the parties a sale or an exchange, although we think the latter the more correct term. At the time the exchange was made, the parties did not stand upon an equal footing. The plaintiff had no knowledge whatever of the Kansas property except what he derived from the defendant, who claimed to have personal knowledge during the negotiations. The representations made could in no way be considered as mere matter of opinion as to the value of the land, or as to its location. The representations were distinct and important, and if found to have been made and that they were untrue in fact, and that plaintiff in making the exchange relied upon the representations made, then clearly he was entitled to recover. The case should have been submitted to the jury under proper instructions. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred.

Campbell, C. J. Defendants in error sued Pratt to recover a debt due from tbe Michigan Chair Company, which it was claimed he had become liable to pay them. The transaction set out in the declaration was that on the 1st of September, 1875, Lucius B. Kendall, Henry E. Hoyt and Albert Arms were stockholders of the company, which was then indebted to Bates & Co., and Pratt, in consideration that these gentlemen would transfer to him 360 shares of stock, agreed he would pay that debt, and they made the transfer. That afterwards, in consideration that Bates & Co. would take no legal steps against the chair company for three months, Pratt promised that firm to pay the debt. This claim was set up in certain count's of the declaration with some variations. There was also a count relying on the promise to Kendall, Hoyt and Arms alone, and a further count relying on that promise and its assignment to Bates & Co. It is not seriously contended that Bates & Co. could sue on the promise to Kendall, Hoyt and Arms without some further facts to bring them into privity with Pratt. The liability supposed to arise from the extension of time is in our opinion very plainly within the statute of frauds. It was a promise to Bates & Co., creditors of the chair company, to pay the chair company’s debt if they -would not sue the chair company within three months. There is nothing in either allegation or proof to indicate any agreement to substitute Pratt’s liability for that of the company. It was an additional and collateral liability to that of the principal debtor. The extension of time might be • a very good and sufficient consideration for Pratt’s promise, but the promise itself being to pay the debt of another is void unless in writing. And the possible interest of Pratt in seeing the debt paid, or the advantage he might possibly gain by the delay did not make the debt any less the debt of the chair company, nor his promise any other than a promise to pay it as their debt. The statute is clear on this subject. Brown v. Hazen, 11 Mich., 219; Corkins v. Collins, 16 Mich., 478; Welch v. Marvin, 36 Mich., 59; Green v. Brookins, 23 Mich., 48. The promise to Kendall Hoyt and Arms, if proved as alleged, being directly to them and not to the creditors of the chair company, for a consideration moving from the promissee to the promissor, was not within the statute. Green v. Brookins, 23 Mich. R., 48. The questions arising on this are therefore quite different, and require different treatment. The court below allowed damages to the full amount of the debt, without any reference to the interest of the original promissees in the matter, and without being measured by their individual or collective loss by the non-payment of the company debts. It is evident that Bates & Co. if claiming as assignees of the promissees (and this is the only ground on which they can make any claim) can only recover the same amount and on the same conditions with them. There is a misrecital' of the consideration. The number of shares to be transferred, instead of 360, was 1440. To understand the position of the parties, it is necessary to refer briefly to what appeared on the trial. Pratt and Kendall, Hoyt and Arms were holders individually of a large part of the stock of the chair company. Its affairs were not prosperous, and it had become indebted largely to Pratt and others to the amount of more than $60,000. Pratt’s claim was nearly half of that sum. Negotiations were had to induce him to assume charge of the affairs of the company. and endeavor to work out; and the conversation in which the alleged promise is claimed to have been made was during these negotiations, and seems to have been but a part of those transactions. Whether separate or connected, the purpose was the same. To advance their interests or supposed interests in some way, it is claimed the stock was transferred and the promise given to pay the corporate debts. It appears that the stock was not held jointly but severally, and was but a part of what was held by the three promissees. It appears, also, that the only pur pose, of any of them was to protect their interests as stockholders. There is some evidence that they supposed' they were individually liable to some extent, but this was not the fact. Assuming, which it appears to us is extremely doubtful, that this transaction if established in fact was separable from its antecedents and entirely distinct, it appears that before the assignment to Bates & Co. of whatever claim Kendall and the others had to have the Bates & Co. debt paid by Pratt, there had been other dealings between Pratt and the stockholders both individually and collectively which materially altered the position of those promissees and their rights in the concern. They had no interest at all in the payment of the company debts except as it might enhance their rights and interests as stockholders. Those rights and interests could only be measured in the light of what has been done with their consent and cooperation since. The agreement claimed was not to pay Bates & Co., but to pay all the debts. And if such was the agreement, we do not see how the precise damage could be ascertained arising from the non-payment of one debt, or how it could be assigned'as a separate claim. The assignment to Bates & Co. conveys no interest in the stock of the assignors, and nothing but their damages arising out of the non-payment of that one debt. It is claimed, however, that the effect of the agreement was to give to those three promissees an absolute right of action to recover the whole debt. If they were the original debtors whose joint obligation Pratt had agreed to pay, the authorities undoubtedly hold that the amount of the debt would be the proper measure of damages, because it was the sum they would themselves have to pay their creditors who could look to no one else. There are some cases of questionable authority which intimate that in the absence of proof on the subject it is presumable that a person who gives a valuable consideration to another to pay the debt of a third is liable in some way upon it. This was held on a question of pleading in Thomas v. Allen, 1 Hill, 145. But where, as here, it affirmatively appears that the promissees were not liable, and had no personal debit relations with the creditors of the company, we think justice and good sense require that if they recover at all, they can only recover what they have lost by the default. This is the general rule of damages to which the cases giving a debtor damages to the amount of his debt against one who agrees to pay it are exceptions resting on special reasons, and anomalous. It has always been regarded as introducing into the common law a partial equitable jurisdiction for specific performance. The reason for it does not extend to such a case as the present where if the promissees received the money the creditors could have no legal remedy against them, as they would against a debtor. We think, therefore, that the interest of Kendall and his associates was confined to such injuries as might come to them as stockholders, and that it cannot be effectually ascertained in a court of common law or severed from the entire transaction; and that upon the facts shown by plaintiffs below in evidence they made out no cause of action. The other points are not therefore important. Judgment must be reversed with costs, and a new trial granted. The other Justices concurred.

Marston, J. A promissory note made by defendant Long, payable to defendant Bennett or order, was, on the date thereof, endorsed by the latter, and on the same day the maker had it discounted at the Citizen’s Isabella County Bank. The note not having been paid at maturity was protested, but too late to charge the defendant Bennett as an endorser. It is now claimed that no protest or notice thereof was necessary to charge Bennett; 'that he having written his name on the back of this note at the date thereof, and before its negotiation to the bank, for the sole purpose of enabling the maker by reason thereof to discount it, became as to third parties a joint maker; citing Wetherwax v. Paine, 2 Mich., 555, and Rothschild v. Grix, 31 Mich., 150, in support of this position, with other cases. In the two cases referred to in this State, the parties who signed their names on the back of the notes were strangers to the notes. They were not the payees named therein, nor had the payee in either case, at the time such third persons placed their names thereon, endorsed the note so as to render the same negotiable. Until the payee endorses the note, no third person can become an endorser. The payee by signing his name on the back of the note becomes thereby an endorser, and can be held chargeable in no other capacity, unless he add apt and proper words to create a different relation. The fact that the payee signed his name on the back of this note at the same time that it was signed by the maker, for the purpose of enabling the latter to negotiate it, would not enlarge his liability or create any new relation between him and third parties who might afterwards become the holders thereof. It follows that a want of proper protest and notice thereof discharged him from all liability thereon. The mere fact that a failure to protest and give the requisite notice may not have resulted in any actual injury to defendant Bennett, is wholly immaterial. The law conclusively presumes injury, and will not permit the contrary to be shown; and there are good reasons for this which need not here be referred to. The judgment must be affirmed with costs. The other Justices concurred.

Campbell, C. J. The controversy in this cause grows out of an execution levy made by Dart on a set of manuscript abstract books which were at the time in the possession of William Woodhouse, the execution debtor, who had transferred them to Lemuel Woodhouse under a transfer which is claimed to have been invalid against creditors. The counsel in the argument of this cause on both sides found difficulties, in the nature of the property, but did- not plainly present the radical difficulty that the right in unpublished manuscripts is neither goods nor chattels subject to execution. The right of the proprietor of such a manuscript to publish it or to keep it back from publication is not only a property right, but one which is purely incorporeal and attended with considerations of a nature entirely different from any involved in other rights. The law will not permit it to be interfered with except as he chooses to make it public, and the right is one which is entirely independent of locality and belongs essentially to the owner wherever he may be, and in whatever locality one or more copies of the writings may be found. The value when it is considered at all in a pecuniary sense depends on the information or interest of the composition or document, and not on the particular bundle of paper which records it. It is very well settled by the decisions of the United States Supreme court that even after a work is published no creditor can reach the copyright unless some special provision of law is made on the subject, and it is also settled that the author’s rights are never subject to disturbance except in accordance with statute. No law can compel a man to publish what he does not choose to publish. See Freeman on Executions, § 110; Stevens v. Gladding, 17 Howard, 451; Stephens v. Cady, 14 Howard, 531; Prince Albert v. Strange, 1 Mac. & G., 25; Banker v. Caldwell, 3 Minn., 94. It would be very absurd to hold that books could be seized and sold on execution which after sale the purchaser could not use. As the creditors could not reach this property, they cannot complain of its disposal, and therefore there is no error which can be complained of here. The other Justices concurred.

Cooley, J. The grievance alleged by the plaintiff in this case is that the defendant took from his possession his crop of wheat, then harvested and in the mow in his barn, and proceeded to thresh the same with an imperfect machine, whereby much of it was wasted, and that he carried away the remainder without leaving sufficient for six months’ provision for the plaintiff and his family. When the proof was introduced it appeared that the alleged wrong was the act of one Montague, a deputy of the defendant, who was then sheriff of the county of Kalamazoo, and that what Montague did was under the pretended authority of an execution. No defect in the execution appears, or in the judgment on which it was issued. Objection was made by the plaintiff to their being received in evidence, but as he only connected the defendant with the wrong by showing that Montague acted as defendant’s deputy, the execution came in as a part of his own case, and the right of the defendant to show that it issued on a valid judgment followed as of course. Two questions of fact and one of law were contested on the trial. The questions of fact were whether the wheat was wasted in threshing, and whether the defendant was allowed his statutory exemption of sufficient of the wheat for the provision of his family for six months. Both of these were submitted by the circuit judge to the jury, and were found against the plaintiff. The question of law was whether Montague had a right to thresh the wheat at all. Montague claimed a right to thresh it under his discretionary authority to put it in the best condition for sale before exposing it at auction under his execution. It appeared that after he threshed it he did sell it at public auction and apply the proceeds. It is conceded that the officer has a large discretion in determining the time, place and manner in which he shall offer for. sale the property levied upon by him; but there is no authority for saying, that he may levy on wheat in the mow and proceed to fit it for market before disposing of it under the command of his writ. One reason is that it cannot be supposed necessary; for the value of grain in the sheaf can be estimated with a reasonable degree of accuracy, and the parties concerned are as likely to' gain as to lose by exposing it to sale in that condition. But a more important reason is, that the power to proceed and expend money in threshing the grain at the debtor’s expense is one liable to great abuses, and cannot be admitted without conceding the principle that the officer may go as far as he may deem important or may choose in preparing the wheat for market before making sale. If he may thresh it, why may he not also grind it, or even manufacture, it into bread, if in his opinion any thing may be saved for the parties by so doing? Or why, when he levies on land, may he not proceed to beautify it if thereby he believes he may add to its market value far beyond what he would expend? The principle once admitted has no limits whatever except in the officer’s unbridled discretion. It is said for the defense that it is conceivable that circumstances may arise which would render threshing necessary; and this being so, the discretion to act in the possible emergency must be admitted; and if once admitted, it must be supposed that the officer found such a necessity in this case. But we are-not prepared to admit either the premise or the conclusion. When circumstances arise which make the case so very extraordinary, we think the officer must show them. General rules cannot be made for unexpected and wholly exceptional cases. The plaintiff claimed that the defendant wholly lost the protection of his writ when he proceeded to an unauthorized sale. This position goes to the question of damages only, and must be left to the jury. Though the threshing was a technical trespass, we do not think the jury are under obligation to award to the plaintiff more damages than-he has suffered merely because the officer in good faith has exceeded his authority. If they believe the officer has acted in bad faith, they will no doubt award damages with that fact in view. It is suggested by counsel for defendant in error that, admitting his liability, the cause of action must arise in favor of the plaintiff in execution, and not in favor of this plaintiff, since presumptively it must be the former who must lose by any sacrifice of property in bringing about a sale. Possibly the plaintiff in execution 'might have a right of action for such a sacrifice if his judgment was not fully satisfied by the sale which was made, and possibly the officer might in such a case incur a liability to two suits, but there is nothing to show that in this instance he did so. It is quite consistent with all that appears in the record that the execution plaintiff may have been privy to all the officer’s proceedings, advising and consenting thereto, so as to be a joint wrong-doer with him instead of being in a position to complain of his conduct. If in fact he was not consenting and was injured, his case can be considered when his complaint is made; the right of the• defendant in execution to some remedy for an unlawful sacrifice of his property is manifest, and if he was solvent so that a new execution might be enforced against him, he would be the only party who could suffer more than nominal damages. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.

Cooley, J. This is an action to recover a subscription of one thousand dollars made by the defendants to the following paper: “We, the undersigned, in consideration that the North- . ern Central Michigan Railroad Company shall proceed to the building of said road, hereby agree to pay to said company, — -for which we shall have paid up stock of the company, — the amount set to our names, to be paid 20 per cent a month, beginning when the work shall have commenced. Dec. 27, ’69.” In Parker v. Northern Central Michigan R. R. Co., 38 Mich., 23, another party was sued upon a subscription made to this instrument, and the court, in an opinion by Mr. Justice Campbell, held that there could be no recovery. The instrument, for reasons there fully explained, was not a valid subscription to stock, and at most it could only constitute an offer by the subscribers to the railroad company, which it was neither averred nor proved that the railroad company had ever accepted or acted upon. In this case an attempt is made to avoid the force of the previous decision. The first count of the declaration avers that the defendants and certain other persons were desirous that the plaintiff should construct a railroad from Jonesville to Albion, and thence to Lansing, for the benefit of themselves severally, and that defendants, in consideration that plaintiff should proceed to construct said road, and for the purpose of effecting said object, and in consideration that certain persons did subscribe their names to the paper above recited, did themselves subscribe and promise to pay the sum of one thousand dollars. It then avers that afterwards, on the 18th day of August, 1871, “the said defendants, still being and remaining subscribers as aforesaid, and no part of said sum having been paid, and the said defendants still being indebted to said plaintiff in said sum as aforesaid, the board of directors of the said plaintiff, at a lawful meeting thereof then held, did, for the purpose of constructing, operating and maintaining its said railroad, make, pass and adopt a resolution in substance as follows, to-wit: At a meeting of the board of directors of the Northern Central Michigan Railroad Company, held at Odd Fellows’ Hall, in Albion. Minutes of last meeting read •and approved. Present, directors Irwin, Brockway, Galery, Landon, Hollingsworth and Riblet. On motion, each director, from their locality, be called upon to report the amount raised for grading said road.- Jonesville, $10,000: Litchfield, $25,000; Homer, $18,000; Albion, $55,000; Springport, $17,150; Eaton Rapids, $19,105; Winsor, $2,000; Lansing, $10,000. On motion a committee was appointed to examine notes and subscriptions. The board took a recess until 7J o’clock in the evening. Board called to order by President. Present, a full board except Hart and Baxter. After which Mr. Brock-way introduced to the board Mr. Johnson, as agent for J. Condit Smith. On motion that the board accept of Springport, in addition to what had been' reported in full, $1,500 more, the board adjourned until next morning, 7J o’clock, August 19th. Whereby, then and there, the subscription of said defendants was delivered to, received and accepted by said plaintiff; and plaintiff avers that afterwards, to-wit, on the twenty-first (21st) day of August, A. D. 1871, the defendants still being and remaining such subscribers as aforesaid, and no part of said sum having been paid, the said plaintiff relying upon said subscription and promise of said defendants in consideration thereof, commenced work upon said railroad and proceeded with .the construction thereof, from that time to the first day of January then next following, at_ which time the iron was laid upon said road from said Jonesville to said Albion. And from said first day of January to the first day of January then next following, the said plaintiff proceeded with the building of said road, and completed said road from said Jonesville, through said Albion; to said city of Lansing. Yet that although said plaintiff has completed said road, and the persons so subscribing have paid the amounts by them subscribed, and the plaintiff has expended and paid out large sums of money upon said road on the faith of said subscription in constructing said road. Yet the said defendants not regarding their said promise, did not, nor would, although often requested so to do, pay to said plaintiff the said sum of one thousand dollars or any part thereof.” There are other counts in the declaration, but it is not important to recite them as it is clear that they do not present a case differing from that considered in the suit with Parker. The theory of the first count is somewhat obscure. One might infer that the purpose was to support the promise of these defendants by the promises of other parties, under the principle affirmed in Underwood v. Waldron, 12 Mich., 73, and Comstock v. Howd, 15 Mich., 237; but. counsel for the plaintiff does not so understand it. “The consideration for the promise,” he says in his brief, “was the building of the road;” and no doubt this truly interprets the declaration. We are to see, then, whether it appears by this declaration that the plaintiff ever accepted and acted upon this subscription. The proceedings of the meeting of August 19, 1871, are relied upon as showing acceptance, but they wholly fail to show it. There was no acceptance of any thing at that meeting, unless possibly it may be the Springport subscription, concerning which no question arises here. Concerning the others an intent to accept is neither expressed nor in any way hinted at. But what is equally conclusive is, there is nothing to show that this subscription was included in those which were before the board on that occasion. It is argued, however, that the demand of payment and the subsequent suit to recover are sufficient evidence of acceptance, and Richmondville Union Seminary v. McDonald, 84 N. Y., 379, is cited as authority for this argument. But the subscription in that case was a subscription to the stock of the corporation. It has been repeatedly held in this State that only the commissioners appointed for the purpose can lawfully take subscriptions to the stock of a railroad company. Schurtz v. Schoolcraft etc. R. R. Co., 9 Mich., 269. A subscription like the one in suit is consequently invalid unless supported by some independent consideration. In this case none appears, and as was said in Parker’s case, it is not shown that the minds of the parties ever met, or that the offer of this subscription was ever accepted. It is not important to discuss the questions of evidence presented by the record when the declaration itself is thus defective. Judgment affirmed with costs. The other Justices concurred.

Per Curiam. The allowance for counsel fees is erroneous, because there had been no appearance of counsel. Supreme Court Buie 48.

Campbell, C. J. Relator was elected judge of probate of Manistee county in November, 1876, and his official term of four years began January 1, 1877. The board of supervisors in October, 1875, fixed the salary of the office at five hundred dollars. On the 18th of April, 1877, they reduced it to four hundred dollars, and in October, 1878, to three hundred dollars. A mandamus is sought to compel them to allow him five hundred dollars, as originally fixed before he was elected. Respondents admit the facts, and claim they have control over the subject. Before considering the sufficiency of the showing it may be well to examine into the course of legislation on this subject. From the organization of the State under its first constitution until 1859, the compensation of judges of probate was determined by the Legislature, and was made up of fees for their services paid by parties and estates. In 1859 the Legislature by statute (Sess. L. 1859, p. 518), provided that all judges of probate elected in and after 1860, should be paid by a salary out of the county treasury, to be “fixed and determined” by the county auditors in Wayne county, and the supervisors in other counties, at not more than eight nor less than five cents for each inhabitant of the county according to each State or United States census, but in no case to be less than one hundred nor more than twenty-five hundred dollars. A percentage was required to be collected from each estate and paid into the county treasury, and fees were abolished after December 81, 1860. This charge has been varied since. In 1861 the Legislature authorized a register of probate to be appointed by the judge of probate of Wayne county, and fixed his salary at five hundred dollars, payable out of the county treasury. In 1863 it was provided that the salary of the judge should be “fixed and determined” by,the supervisors (or county auditors in Wayne county) at not less than one hundred nor more than fifteen hundred dollars, except that in Wayne it might be not more than twenty-five hundred dollars. But this act was not to affect the salaries of judges then in office. Sess. L. 1863, pp. 121, 122. In 1865 certain county boards of supervisors were allowed to fix salaries without reference to the limitation in the law of 1863. Sess. L. 1865, p. 637. Provision has been made for probate clerks and registers and their compensation within certain limits in several cases, general and special. Sess. L. 1865, p. 580; 1 Sess. L. 1867, p. 206; 1 Sess. L. 1869, p. 144; 1 Sess. L. 1873, p. 188; Pub. Acts 1875, pp. 151, 198; Pub. Acts 1877, p. 145. In 1873 there were two changes, — one (p. 498) allowing beyond salary, to judges, fees for copies and certificates, and the other (p. 188) allowing supervisors of all counties but Wayne to fix salaries not to exceed fifteen hundred dollars, and in Wayne fixing the amount absolutely at two thousand seven hundred and fifty dollars. This last law declares that “said salary shall be fixed,” etc., and contains no other qualification beyond the amount of limitation. This was the law in force when the action was had in Manistee. The first ground taken by the relator that the schedule to the constitution fixes the rights of the judges not to have their salaries changed (schedule, § 20) is, we think, untenable. The schedule was intended to provide for temporary and not for future and permanent purposes; and cannot be given a permanent operation in any case where any other interpretation is reasonable. But the main ground of complaint is that the supervisors can have no inherent power over the subject, and that they have exceeded any valid authority conferred upon them by the Legislature. It is very clear to us that the duties performed by probate judges are in no sense services performed for their respective counties, and that they are in no sense county officers. They exercise a portion of the judicial and prerogative power of the State, and cannot be subjected to the direction of any body inferior to the Legislature. It is very plain that if their salaries can be put under the complete control of any local body, and be changed in its discretion, it will be an unlawful abdication of the power of the State, which cannot be upheld on any principle. The Legislature is the only body having charge of the State interests. It cannot be lia,ble to the local passions and prejudices which may and often do produce confusion in local affairs, and which, if allowed free action, may destroy the independence and break up the business of one of the most important branches of our judicial system. It is easy to see that in dealing with this subject of probate compensation the statutes have always gone upon the theory that the supervisors have no original power over the subject; and most, if not all of the legislation, properly construed, has shown a desire on the part of the Legislature to prevent just such action as was had in this case. So long as fees were fixed, there was no action possible by the supervisors. The statute of 1859, while it gave some discretionary power, carefully limited it. so as to compel salaries to be fixed with some regard to population, and fixed not only a .•maximum and minimum .salary, but also a sum for each inhabitant on a small sliding scale of practical equality. The changes of 1863 were not to affect existing incumbents, and did not allow action once taken to ;be changed. A power delegated to an agent to “fix and determine” a matter in which he has no power of his own outside of the agency, is expended when he has once ■acted. The special 'law of 1865 in like manner allowed ;aetion once for all. The law of 1873 is still more significant, because, while it authorizes the supervisors to fix salaries in other counties, ■ itself fixes the salary of the judge of Wayne county, so that it cannot be changed .without further legislation. It would be a forced construction to hold that the term “ fix ” could mean change, as it must mean that, if any such power exists as was exercised in Manistee. The distinction between those charges against counties which boards of supervisors may control, because for services rendered to the county, and those which the State may compel them to pay as a fair apportionment of burdens for services rendered to the State, was pointed out and fully discussed in The People v. Board of Auditors of Wayne County, 13 Mich., 233. In that case the salary of the clerk of the Detroit police court was held lawfully charged on the county of Wayne, and beyond the control of the board of auditors. The nature of judicial business as public and not local was explained, and the impropriety and illegality of allowing it to be subjected to the control of any local authority was referred to. We need not, therefore, repeat what was there intimated. We have no hesitation in saying that under our constitution the board of supervisors do not possess, and cannot be allowed to exercise, any control on their own behalf, or any general control at all over these salaries. If they can do anything in the matter, it is only to exercise the delegated power of acting once until directed by the legislature to act again. Whether even this power can be granted is a very serious - question which is not very important in this case, or probably in most cases now existing, because the judges may undoubtedly, if they choose, accept the salaries fixed, and having gone into office on those terms, and no other compensation being provided by law, both parties may be deemed to have bound themselves. But no such inference can. arise when a change is made decreasing a salary after a judge has once been elected. The power to delegate any authority whatever to fix these salaries is open to so much question that it is very fortunate that the matter can be considered by the Legislature before any further complications arise. E. E. Benedict for the motion. N. W. Nelson against. We think relator is entitled to the salary fixed before his election. A mandamus must issue according to the prayer of his petition. The other Justices concurred. Afterwards, at the June term, 1879, the board of supervisors moved for a modification of the order of the court, and showed that the salary of the office of judge of probate in Manistee county had been originally fixed at $800 under the power delegated by the Legislature, but had been raised to $500 before the election of relator. The motion was submitted June 10, and decided June 11. The Court stated that it had been shown that the answer of the board of supervisors to the order to show cause why they should not allow the relator the full amount of salary which he claimed, contained a serious mistake of fact by which it was left to be understood that the salary was originally fixed at $500; but that this mistake ought not to preclude the showing now made, especially as the writ of mandamus had not yet issued. They accordingly granted an order staying the issue of the writ.

Per Curiam. A continuance had been granted in the court below on condition of the payment of costs. The party upon whom cost's had been imposed preferred to waive the continuance rather than pay the costs, but the court held he could not do so, imposed the costs absolutely, and issued execution to enforce the order. Held that mandamus would lie to recall the execution and rescind the order granting costs.

Cooley, J. Gale filed his bill in this case to remove a cloud upon his title to a parcel of land in Tnghnm county. The defendant Hammond was formerly the owner of the land, and on November 30, 1869, mortgaged the same to Joseph Gale to secure the payment of $1,000. This mortgage was assigned to complainant in 1872 and was foreclosed and the land bid in by. complainant in 1874. Complainant has since ascertained that on October 21, 1868, Hammond had conveyed the same land to the defendant Gould, by a deed which was immediately placed upon record. He charges that this conveyance was entirely without consideration, and that it was made to cheat and defraud the creditors of Hammond. He avers that Joseph Gale was one of those creditors to the amount of one thousand dollars, and he prays that the title of Gould be decreed to be fraudulent and void, and that the title of complainant under the foreclosure be declared absolute, etc. The case has been heard on pleadings and proofs, and decree made in accordance with the prayer of the bill. An inspection of the record leads almost irresistibly to the conclusion that the deed from Hammond to Gould was made without any adequate consideration, and probably no one will be wronged if in this controversy it is treated as a purely voluntary conveyance. But there is not the slightest evidence in the case tending to show that Hammond deeded the land to Gould in fraud of his creditors. Neither is it shown that Joseph Gale at the, date of the deed was a creditor of Hammond. Neither is it made to appear in any way that Gould was privy to the fraud of Hammond in obtaining a loan from Joseph Gale, and pretending to secure it by a mortgage on lands he had previously conveyed away. Complainant’s case then is this: He claims title to the land under a mortgage which was given by one who had previously conveyed the land without consideration to one who then held it under a recorded deed. He connects this grantee with no fraud or attempted fraud upon his assignor, but he insists that she is in fact, by some secret understanding, holding the land for the benefit of the mortgagor, and he seeks to reach it in her hands on that ground. It seems sufficient for us to say that in the absence of any showing of fraud as against the defendant Gould, she can stand in no worse position than that of any other grantee by voluntary deed duly recorded. Her title is perfectly good as against her grantor, and also as. against any subsequent grantee or mortgagee under him, or any subsequent creditor. Page v. Kendrick, 10 Mich., 300; Keeler v. Ullrich, 32 Mich., 88. The decree must therefore be reversed and the bill dismissed with costs of both courts. It is urged by complainant that it should be dismissed without prejudice ; but as a new bill must necessarily cover the same ground already gone over in this suit, it would be contrary to established and proper usage to take that course- The other Justices concurred.

Campbell, G. J. Bailey being a candidate for Congress on the prohibition ticket, the defendant company published several newspaper articles against him containing some direct charges against his moral character and integrity, and some comments of a very harsh character, all of which were published in connection with the slanderous allegations, and would be privileged by the occasion if those allegations were true. The contest, therefore, on the trial, was confined to an attempt at justification, and to proof in mitigation. The charges, which need not be quoted at length, were as follows: First, “ that he is now under indictment for malfeasance in office as justice of the peace in his former home, and has no moral backing whatever.” Second, “The last we knew of this Bailey he was convicted of stealing whiskey fines while a justice of the peace in this county, and sentenced to pay a fine of $50 and costs or go to jail.” Third, “Then there was that Iowa Beecher business of his, which beat him out of a station at Grass Lake. But pshaw, these reformers are pretty much all alike.” This latter charge was connected with statements indicating him to be a minister of the Gospel, and the declaration claimed it to mean that he had lost a position on a charge of adultery. Fourth, that he was a “pettifogging shyster,” he being a member of the bar. So far as the principles of law laid down in the charge are concerned, they accord with the general understanding. The court charged that it was allowable in good faith to comment on the actual conduct of a candidate in such matters as the public were entitled to know, but that there was no right to publish untrue statements such as were above referred to. It was further charged in substance that malice would be mitigated by an honest publication in good faith of what was based on reasonable grounds of belief, but that if there was not such an honest intent, mere belief would not excuse actual malice. The verdict of the jury could not have been given under the charge unless they found the truth of the charges made out fully, and the court substantially instructed them that there was evidence to act upon in so finding. They did not give damages of any kind, but found for the defendant no cause of action. The notice of justification appended to the plea was in these words: “The defendant will prove the truth of the allegations in said declaration contained.” Two objections were made to the reception of proof in justification: first, that the notice negatived the truth of the libels by averring the truth of plaintiff’s averments in the declaration; and second, that the notice was too vague to identify the facts intended to be relied on. Upon the first point we think the criticism is over nice. No one can doubt that the purpose of the notice was to justify the defendant. It is manifest that the allegations which defendant meant to justify were the allegations in the libels complained of, and not the plaintiff’s own averments in pleading. Upon the second point the case is governed by Cresinger v. Reed, 25 Mich., 450. It was there held that under our present statutes such a general and sweeping notice is good. Under the old system, as there shown, specific averments were necessary and the precise acts claimed to have justified the libel were required to appear. It was competent in libel and slander cases to deviate from the ordinary rule and justify a part only of the charges, leaving the rest to be dealt with as not justified. As remarked by Keating, J. in Jones v. Bewicke, L. R. 5 C. B., 32, the propriety of a change in the old practice may be doubted. But it has been made in England as well as here, and one reason in its favor is that it avoids the danger .of losing a good defense by the great technicality that was at one time applied to pleas of justification in cases of defamation. See Gourley v. Plimsoll, L. B. 8 C. B., 362. The objections to this general notice are entirely obviated by the practice which is held to prevail in accordance with the two cases just cited, of compelling a defendant, if requested, to serve particulars of his justification. In this way the plaintiff can avoid being surprised on the trial, and can prepare for the defense to be urged against him. But it is equally clear that where, instead of giving particulars, a defendant puts in a sweeping universal justification, he assumes the' task of showing one precisely proving the truth of the libellous statements as charged. This was held in Whittemore v. Weiss, 33 Mich., 348. Unless the notice enables plaintiff to know what the proof is meant to cover, he cannot be expected to meet it. There was no evidence introduced to show any charge on which Bailey had been actually indicted for malversation in office as a justice of the peace. An attempt was made and permitted to show it by a prosecution and conviction before a justice of the peace, afterwards during the pendency of this suit affirmed at the circuit, of not paying over an assault and battery fine collected by him in his official character as justice of the peace. He was sentenced for this misdemeanor to pay a penalty of fifty dollars. A prosecution before a justice is not in a technical sense an indictment, but it serves a similar purpose. Grand juries are seldom summoned now, and very few cases are tried at the circuit on indictment. Informations have generally superseded the old method. Yet we use the term “indictment” in ordinary conversation and often in judicial opinions to express any criminal prose cution. Tbe burden of this charge was that Bailey had been prosecuted for malfeasance, and we do not think there was any substantial variance between the charge and proof. The popular sense was made out by showing the prosecution for misconduct. We do not think an allegation of stealing whiskey fines was met by proof of not paying over a fine for an assault. There may be no difference in the legal or moral quality of the acts, but there is a difference in their identity; and a plaintiff should be informed what charges in justification he is expected to meet. The court also left the charge concerning the Beecher business and plaintiff’s loss of offipe to the jury as one which they might not regard as involving a charge of adultery, and instructed them if it did not, then plaintiff could not recover without proof of special damage. There was no proof offered to justify this allegation. It was set forth in the declaration as intended to charge adultery, and the justificatory notice did not except it. Moreover, inasmuch as courts have no right to be ignorant of the meaning of current phrases which everybody else understands, it can hardly be seriously urged that such a charge, coupled with an averment that it lost a minister his situation, and backed with a justification,' should be assumed without some explanation to be capable of an innocent meaning. Defendant was bound to show a loss of position at Grass Lake upon some charge of immoral conduct affecting the plaintiff’s clerical character in order to justify this charge. We think also that the term “pettifogging shyster” needed no definition by witnesses before the jury. The combination of epithets every lawyer and citizen knows belongs to none but unscrupulous practitioners who disgrace their profession by doing mean work, and resort to sharp practice to do it. The defendant introduced proof that such was the general reputation of plaintiff, and we think this was a sufficient mode of proof, which upon this charge made out a full justification unless contradicted. We do not think the defendant could enter upon proof concerning the truth of the libels published after suit was commenced. Neither, on the other hand, do we see what the plaintiff’s affidavit to obtain certiorari in the criminal case had to do with the truth of the facts, so as to authorize him to use it. It was not error to give the defendants full liberty to show upon what grounds they based their information in publishing the libels. The public are interested in knowing the character of candidates for Congress; and while no one can lawfully destroy the reputation of a candidate by falsehood, yet if an honest mistake is ma<fe in an honest attempt to enlighten the public, it must reduce the damages to a minimum if the fault itself is not serious, and there should be no unreasonable responsibility where there is no actual malice. The fact that Bailey had been convicted of embezzlement of any kind of fine collected by him might, with no more exaggeration than is common in spreading rumors, develop into just such reports as were shown in this case; and if defendant heard them and honestly believed them, it would be unjust not to receive such evidence as bearing very strongly indeed upon lack of wrong intent. Though not a technical justification, it is difficult to see how such statements damaged plaintiff any more than a precisely accurate statement would have done. We think that the record contains some errors, and we cannot determine as matter of law' that no damages would have been given in any event. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Cooley, J. Beecher, who is proprietor of the Biddle House in the city of Detroit, on the second day of October, 1875, entered into an agreement with Pettee for the taking charge of and furnishing the kitchen and dining room of that house from that time until the thirty-first day of March following. The contract is given in the margin. Pettee claims that Beecher, before the month of October was completed, interfered so seriously with his management by the discharge of servants, etc., and affected the business so much by raising the price of board, that it became impossible for him to continue under the contract except at a serious loss, and that this fact became the basis of new negotiations between the parties at the end of that month. The result of these negotiations Pettee says was that Beecher agreed to give Pettee three hundred dollars for his services in October, that sum being about one-half the profits which Beecher as proprietor of the house had made for that month, and to pay Pettee two hundred and fifty dollars a month for the services of himself and his wife for the next six months, with rooms and board for himself and his family; and Pettee accepted these terms and proceeded in performance on his part, until the 17th day of December following, when Beecher closed the house and terminated his employment. Meantime he had not had rooms and board for himself and his family according to the agreement. Pettee then brought suit. The first count in the declaration is upon the written contract, the breach alleged being that Beecher refused to permit Pettee to carry out and perform it. The second count was on the alleged agreement to employ Pettee and his wife for the six months following November 1, 1875, and to furnish them with rooms and board. Nothing is said in this count about the payment of three hundred dollars for services in October. The common counts were also added. On the trial Pettee was allowed to prove some of the negotiations which led to the written contract as bearing upon its proper construction. We have been unable to discover either any reason for this, or, on the other hand, how it could possibly injure the defendant. It would have been much better to have saved questions by omitting to offer it. Plaintiff was allowed to put in considerable evidence to show that defendant by his interference broke up the arrangement effected by the written contract. Some of this had but slight tendency in that direction, but we cannot say that any of it was clearly irrelevant. A letter written by Beecher to one of the Detroit papers, in which he avowed the act of discharging the table waiters, the reception of which was objected to, was admissible, we think, beyond question. The real controversy in the case was over the question whether a new contract was actually made between the parties as Pettee claimed. The jury have found, on somewhat slight evidence, that there was. We discover no error in any of the rulings of the court with a single exception, and that relates to the three hundred dollars which Pettee claims was to be paid him for services in October. This the court held he might recover if the arrangement was made as he testified. In respect to the promise to pay this sum, it is to be said that, standing alone, it would be nudum pactum. It is not pretended that Pettee was entitled to it under the first contract, nor that Beecher agreed to-pay it in settlement of claims under that contract. There was consequently no consideration for the promise, unless it was a part of the new arrangement by which Pettee and his wife were to give their services for six months for two hundred and fifty dollars a month, and to receive the three hundred dollars in addition. The count in the declaration on this new promise does not, however, include this promise as any part of it. The sum could not therefore be recovered under that count. Neither could it be recovered under the common counts, for the new contract was never fulfilled, and plaintiff seeks to recover for not being suffered to fulfill it. But he cannot divide up his cause of action under the special contract and recover for a part under the general count and a part under the special. When he sues for not being suffered to complete a special con tract, lie must declare specially, and cannot rely upon the common counts as being applicable to any portion of his grievance. If the consideration for the promise to pay the three hundred dollars was the promise of plaintiff to' perform certain labor in the future the plaintiff ought to have framed his special count to accord with the facts; but this he did not do. It is proper to say, however, that we find in the record no evidence clearly tending to establish that theory of the facts. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred. Luther Beecher — Myself and wife agree to assume the responsibility and running of the dining-room and kitchen of the Biddle House on the first day of October, 1875, and giving oUr individual attention to each branch connected with it, will serve a table which shall be in every respect first-class and shall give general satisfaction to yourself and the guests of the house. We.to pay all costs of supplies, servants, heat, gas, water, ice, and all other expenses, daily or weekly, for this department, ior which you are to furnish the use of dining-room, kitchen, and laundry, store-rooms, closets, furniture and equipments, and comfortably furnished living rooms for our family use; also furnished rooms for sufficient servants to carry on that part of the house, and pay us six dollars per week for each weekly table boarder of the house, and thirty (30) cehts per meal for each transient person, and a corresponding percentage for meals served on the European plan, payable weekly. Nurses and children shall be boarded at their own table for three dollars per week, and meals served in rooms shall be on the European plan. The furniture and equipments shall be invoiced October 1st, 1875, and at the close of this agreement on the 31st of March, 1876, and is to be kept at our expense in as good condition and of equal value as when invoiced to us. The supplies now on hand to be invoiced to us at cost and paid for from first money due us. It is expressly agreed by us that a strict account of all outlay shall be kept and monthly statement thereof made to you, and whenever the monthly gains or profits shall exceed $250 per month, or the average of $1,500 for the six months, that all excess over this amount shall belong to you as rental for use of dining-room, kitchen, etc., etc. It is further agreed that in case of our neglect or inability or from any cause we fail to perform our part of this agreement, you may provide for such default and terminate the same and take immediate possession and invoice supplies, equipments, etc., settlement and payment shall be made on the above terms, to the time of such failure' only. G. M. PETTEE. I accept above proposition. LUTHER BEECHER. At the commencement of the foregoing appeared the following: “Signed in.duplicate, Oct. 2d, 1875.” The letter as given in the record was as follows: Biddle House, Oct. 22nd, 1875. Mr. Free Press: Generally your “items man” is sometimes O. K., but not always so, leastwise some facts in place of “sudden fancies” in giving correct views of eunrent events at the “Biddle House dining-rooms” would cost you nothing and benefit me much. “Colored waiters.” Yes I have seen much of them. More than J of that imported set of French crockery is now a smash-up, then silver spoons and knives and forks imported for the B. H. are out on pawn duty for “drinks that cheer and exhilarate." Also the new and expensive cut glassware has become broken glass under their careful usage. Loaf sugar, cream cakes, and grapes of the sun disappear most strangely between the pantry and guests’ table. Storms of noises and confusion — 'with streaks of blue swearing and pure cussedness — gives daily high-toned style to the boarders’ tables unless “small scrip” passes current, &c., &c. Coats, vests, pants and seedy old shoes of these young people mixed up promiscuously in the china cupboards added sweet smells, twice as green from the sources of the upper river mills. * * The past 4 years has cost in cash, for this kind of thing has been in wages, paid to them direct, over $30,000, and as much more in value has been lost, mislaid and stolen. * * * I said go, and they went, 1 hope to trouble me no more. Yours truly, UNCLE LUTHER BEECHER.

Campbell, C. J. Smith sued Bennett for the price of' certain logs. Part of these had belonged to Smith and. were bargained at eight dollars a thousand. The remainder were logs belonging to Smith and Bennett, for which Bennett was to pay the concern seven dollars and fifty cents a thousand. One principal question is whether Bennett can be sued for these logs of the joint ownership in this action. To determine this it is necessary to look at the facts. In December, 1872, Smith agreed to buy on joint account certain lands to be owned in common, and to cut the pine timber on joint account, — the proceeds thereof to be divided equally after repaying the lumbering expenses and advances made by Bennett.- Bennett was to have the right to purchase the logs on terms to be agreed on.' In March, 1873, it was agreed he should take them under the contract terms at seven dollars and fifty cents. At the same time he bargained for Smith’s other logs. To ascertain, therefore, what Bennett owed Smith it was only necessary to deduct from the value of the logs Bennett’s advances and divide the balance by two. Bennett was to make and did make the advances for buying the land and for expenses. As there were only two persons interested in this bargain, we can see no practical difficulty in determining the price to be paid to Smith by Bennett. It involves nothing in the nature of partnership accounts beyond the disposal of an ordinary trial at law. The court below was, we think, in -error in allowing only $200 instead of $400 to be deducted from the gross value of the logs before dividing the balance. The contract expressly recognized Bennett’s right to be repaid the whole advances for land as well as for other expenses, as a joint debt to him, and until those debts were paid there was nothing to divide. The joint profits only included what was left after payment of debts. Smith had his half of the land and of the net proceeds of the lumber at no cost to himself, but as profits of the venture, in which his labor offset the advantage derived from the money advanced by Bennett. Certain logs marked with an oxbow were allowed to be recovered for at $4.25 a thousand. The bill of par ticulars enumerated two million feet of logs at $7.50 and $8.00 a thousand, and these were the agreed prices of the contract logs. We do not think the smaller parcel at a different price could under these circumstances be included. And it was also irregular to allow a recovery for more than the bill of particulars alleged. But as both of these defects can be amended, they will not be of much importance hereafter. It was error to allow the testimony of a witness to stand after he had sworn on cross-examination that he had no personal knowledge about more than one or possibly three or four logs out of a large amount he had sworn to have been in Bennett’s possession. As we understand the record, there was evidence that Bennett had paid $2,000 into bank to the credit of Smith, and had in addition paid several drafts on himself drawn by Smith, which had been returned to Smith as he claims as vouchers by the bank for his $2,000. As the testimony stands it does not appear how this could be. Smith could swear to nothing about the use of his funds on any orders from himself, and the bank could not pay them out on Bennett’s order, and there is in. the record no evidence that it was-.either done.or authorized. As the case is presented on the papers we do not see what right there was to deduct this $2,000 from the amounts advanced by Bennett. A paper containing some figuring by Bennett appears in the record. It was properly received among the res gestee, but does not appear to have any conclusive importance or definite meaning by itself and needs no comment. . The judgment must be reversed, with costs, and a new trial granted. The other Justices concurred.

Campbell, C. J. These proceedings are for the purpose of foreclosing two mortgages and accompanying notes, one dated February 14, 1873, for $3,469, payable at the expiration of five years, with interest annually at ten per cent., and the other dated February 28, 1873, for $1,770, payable in one year, with interest at ten per cent. These securities purport to be payable to Milo D. Matteson, or order, and are claimed by complainant to have been assigned to him on the 21st of July, 1873. The bill in ea'ch case sets up that Morris claims the notes and mortgages to be forgeries, and that he also claims that he never had any but certain specified dealings with Milo D. Matteson; which claims are controverted by complainant, who avers dealings to the amount of $15,000 borrowed and received by Morris, and notes to the number of upwards of forty, from small sums up to more than five thousand dollars each. The bill does not in either case make any averment concerning the consideration of either of the securities in suit, but avers the amounts due and unpaid, and asks a decree for the full amount. An answer under oath was required, and Morris answered, relying upon certain defects in the averments of the bill; denying positively any consideration received, denying the execution and delivery of any such notes and mortgages or any contract to make or deliver them, and averring his ignorance of their existence except as derived from the assertions of Milo D. Matteson. The answer asserts that if any such papers are in existence they were obtained by some fraud in procuring the signatures, and that defendant has no knowledge of making .or acknowledging them. He also denies on information and belief that complainant is a bona fide holder. These mortgages, together with a third one of $5,018, dated June 21st, 1873, were recorded in Cass county, where the lands lie, on June 28, 1873. Morris lived in Yan Burén county, as did also Milo D. Matteson. Complainant lives in the State of New York. The assignments were never recorded. One of these bills was filed in April 1875, and the other in September, 1875. On the 4th of August, 1873, a bill had been filed by Morris against Milo D. Matteson •to set aside the mortgages and restrain their transfer. The oath of that defendant was waived, but he answered without oath, setting up the assignment to complainant and denying the statements of the bill, but not explaining the' consideration of the notes beyond averring the advance of $410 on the earliest, and $240 on the second. .He admits no money was advanced on the third. That suit does not appear to have been brought to a conclusion, and the substantial merits are all involved in the present controversy. A preliminary question was raised whether complainant stands in the same position as Milo D. Matteson upon the defense of want of consideration — if the paper is genuine, — or whether as a bona fide holder without notice he can recover, although no consideration should have passed. Complainant is not an endorsee of either of these notes. He took them under assignment merely, one of them purporting to be guaranteed and the other not. He is not therefore under our statute (Comp. L., § 5775) in a position to sue upon them at law in his own name. Moreover, there is no evidence of delivery beyond such presumption as may arise from the possession of the assignments, which were never recorded, and there is no evidence whatever that he paid anything for the securities. The only testimony showing any possession of the documents relates to their being received from him by mail several days after Morris filed his bill. As there was time in the interval to send forward the papers and have them returned, this testimony is not very important. The testimony concerning the papers was such as in our opinion to call for explanation, and we cannot assume from any thing we find in the record that James Matte-son, with or without notice, ever gave value for these papers. He is therefore bound by any equities which would affect his brother Milo. The whole case is open, then, to inquire whether these papers were either forged or fraudulent, or whether, on the other hand, they are valid and binding. Before proceeding to discuss the merits, the case is one raising some questions concerning the burden of proof. It is not explained satisfactorily why we have not been furnished with the testimony of the parties best acquainted with the facts. James Matteson and Milo D. Matteson are the only persons, so far as we can gather from the record, who could tell under what circumstances and for what purposes the alleged' assignments were made. Milo D. Matteson and Morris both must know whether any transaction existed which could give legal efficacy to the securities, and whether such papers were actually and intentionally executed. The notaries, who were subscribing witnesses, did not see the signatures affixed, and knew nothing of the business beyond the recognition and acknowledgment. One subscribing witness, the father of complainant, was not sworn. James and Milo were not sworn. Morris put in a discovery under oath, and was not sworn further. It becomes, therefore, important to know which party had the burden thrown upon him. The bill calling for an answer under oath put necessarily in issue the existence and consideration of both notes and mortgage. Anything was responsive to the bill which bore upon the transaction or explained its circumstances. Under the well settled rules of pleading Morris was called upon to answer not merely the special interrogatories, but the whole series of material averments, and his answer setting up no matters in avoidance, but referring only to the transactions mentioned in the bill, must stand until overthrown by sufficient counter evidence. Schwarz v. Wendell, Walk. Ch., 267; Robinson v. Cromelein, 15 Mich., 316. The latter case is directly in point, and holds that under such an answer as was filed to each of these bills, the complainant is bound to show consideration or be bound by the denial. It cannot be reasonably urged that the ordinary presumption arising from a promissory note can overcome the oath of a witness called by the complainant himself ■who denies it. Such a presumption except in favor of a bona fide holder is one which can always be overcome by proof, and is at best but prima facie evidence. It cannot overcome credible testimony. And the same rule of pleading before referred to called on complainant to show affirmatively the genuineness of the documents, concerning, which defendant had been specially interrogated, and which he denied. The defense of forgery rests on two alternative theories : ¡first, that the signatures themselves are not genuine; and second, that if genuine they were procured by some trick to be appended to false documents. And in this controversy the question of consideration becomes very important. If no consideration passed, the probability of actual forgery of some kind is increased. No one swears that he saw Morris sign these papers. The subscribing witnesses and notaries, Foster and Coleman, who were sworn, testify to a recognition of the documents. The subscribing witness A. M. Matteson, whose name appears on the second mortgage, was not sworn. The testimony of witnesses as to resemblance and genuineness of handwriting is conflicting, and not any more satisfactory than such testimony is apt to be in such cases. The impressions of the immediate friends of Morris are strongly against the genuineness of the disputed signatures. Usually such impressions are more reliable than the reasons given for them, and in ordinary cases they are valuable. Most of the witnesses for complainant are merely sworn as experts, from comparisons made for the occasion. This puts them in no better position to judge than any other observer who has no personal acquaintance with the handwriting of the parties, and who has the usual means of judgment. Unfortunately there are some of the compared papers-which are open to the same dispute as to genuineness as those in issue, and witnesses who have not been called to the stand until it has been ascertained they will give favorable testimony cannot always distinguish' the impressions they have received- from particular papers. The home witnesses on both sides have evidently been more or less prejudiced by the local disturbance of this litigation, and after considering the whole of this extended testimony upon handwriting, we do not find ourselves much aided by it. The impression made on us by our own comparison of the papers is unfavorable to the genuineness of the signatures. But our previous experience has convinced us that it is not always possible to decide such matters on signatures alone, and that it is not wise to do so unless where the case is bare of circumstances which may throw light on the probabilities. The worst forgery this court was ever required to pass upon was one where the fact was proved beyond any doubt, and yet the signatures were so perfect that their genuineness, — without conclusive proof of other facts, — could not have been overthrown. Apart from and independent of any question. on the appearance of the signatures, the facts to counterbalance the denials in the answer of Morris do not in general tend in that direction. They rather tend the other way. While it is quite possible for persons to borrow money and use it for purposes not known to their friends, it cannot be denied that when any such controversy arises as we have before us, some light is thrown on the probabilities by the pecuniary condition of the parties. In the present case loans are involved to the amount of about ten thousand dollars within a period of four months and a few days. Of this over five thousand dollars was claimed to have been secured in the same month and at intervals of two weeks. During all this time Morris, so far as any one can see, was in no need of such -loans, and was not known by any one to have had any considerable sums in possession, while he incurred some small debts during this period which would naturally have been paid or not incurred if he had cash means. If he had any snch moneys it is difficult to believe that some one could not have traced them. Milo D. Matteson appears beyond doubt to be a grasping and sharp money lender; and there is nothing to warrant the belief that he would lend money on doubtful securities, or run any risks with those he took. It is not usual for such dealers to lend so much money on lands of the moderate value here shown. An unencumbered title to the lands would not warrant such loans. In the present case there is the very unusual absence of a release of dower from each one of the mortgages, which would greatly reduce their value. A wife may very wisely and properly decline joining in mortgages which she does not approve. But where a mortgage is for any large amount it is rarely taken without at least seeking her concurrence. In the present case she was ignorant of their existence. To meet this suspicious fact, a theory is advanced' that Morris desired to conceal, the loans and securities from the knowledge of other persons. No one testifies to any such desire on his part. There is testimony that Mattison gave this story as a reason why he did not record his mortgages. He does not offer himself as a witness to show any such expression from Morris, and it is improbable that a mortgagee would run such risks, or be willing to hazard the priority of his securities to aid in a concealment which could only be desired for purposes which were questionable. It is also significant that as soon as the dispute arose Milo D. Matteson made haste to put the papers out of his hands, and to create a pretense that they had been transferred to a bona fide holder. There is not the least evidence or probability that these alleged transfers were honest sales of the mortgages. And if the mortgages themselves were genuine and honest securities, there was no good reason why the mortgagee should not have retained them. There is no evidence which in our opinion indicates any conduct on the part of Morris showing a knowledge of or acquiescence in the mortgages. There is positive proof that he was notified about the first of August, 1873, of the record of the mortgages, and that he at once took energetic measures to assail them; and that this was met by a claim of a previous assignment to a non-resident brother of the mortgagee, under instruments not recorded. If this was a course of actual dealings, Milo D. Matte-son knew all about it. He knew whether he lent money to Morris or not, and precisely what passed between them. He knew every circumstance which would determine the genuineness or falsity of the papers, and the consideration if there was one. He knew whether Morris signed these papers, and whether he did so understanding what they were or supposing them to be different. He knew also, and complainant also knew why and how the assignments originated. Morris had been sworn to an answer and positively denied the genuineness of the documents as well as their consideration. The notaries knew nothing of either except as they claim to have got their knowledge after the papers were signed. A failure to testify under all these circumstances cannot be accounted for on any honest hypothesis. It confirms all the testimony opposed to the genuine character of the transactions set up. In the only document in which Milo D. Matteson attempts to explain the transaction, which is his unsworn answer to the bill filed by Morris, he does not pretend to aver any loan on the largest of the three mortgages, nor more than about fourteen per cent, on the other two, and gives no explanation as to the origin of the remainder. Such a showing is inconsistent with any honest transaction, and is not reasonably credible as to any dealings. The only hypothesis consistent with the genuineness of these papers is that there were some secret dealings between the parties which Morris was interested in con cealing. There is no proof of this, and no reason why Matteson should fail to explain them. Under these circumstances we do not think it necessary to enter upon any speculations as to the manner in which these papers were made to appear genuine, whether the signature's are actually fictitious, or real signatures procured by some peculiar fraud. We have no doubt that they are fabricated papers. We are not required to determine the guilt of any one but the mortgagee, and we do not think the testimony requires any further remarks on that subject. We do not feel that we know enough about the method of procedure to pass upon the guilt or innocence of any one else, and all presumptions that can reasonably be indulged should be in favor of innocence where it. is possible. The decrees below should be reversed, and the bills dismissed with costs of both courts. The other Justices concurred.

Campbell, C. J. This is an action of replevin brought by Leppig, who recovered judgment below against plaintiffs in error. They were in possession of the property in dispute, under a levy made on attachment against one Gustave CM'ist, December 29, 1875. Leppig claimed to have been in possession in Ms own right. On the trial his interest in this personal property was set np as originating in a chattel mortgage made in February, 1875, and also under a bill of sale made November 29, 1875. If he was in possession it was taken under this last instrument, immediately after its date. The controversy below turned on two main points, viz.: whether he was in possession at all, and what rights, if any, he held under the bill of sale. A third not less important question, in one view of the case, was whether, assuming his possession to be that of a mortgagee, a levy could be made upon it while so held. Among other questions which were discussed on the trial was the validity of this bill of sale if meant as a mortgage, the same not having been recorded, and also its validity as an absolute conveyance under the circumstances as to possession. Both questions are affected by an inquiry into its consideration and conditions, and the quality of what is claimed to have been the possession. Some points of evidence also arise. If the record contains all of the testimony there are some very significant difficulties with any of the theories of Leppig. But we are only concerned with the law questions. And the first matter demanding attention is the nature of the mortgage interest, if it was such. The mortgage of February 1875, is a mere mortgage of indemnity against liabilities assumed by Leppig for Christ. It requires Christ to pay certain obligations for which Leppig was bound as surety, but it does not require Christ, as between him and Leppig, to respond until February 18, 1876, or nearly two months after the levy. Any possession held in December was not a possession on default, but if valid was only the possession of a mortgagee, to preserve the property, and might never amount to any more. If the bill of sale can be treated as a mortgage upon this record, it involves several inquiries. An important one is whether it superseded the former mortgage. Beyond this comes the inquiry what it was meant to secure. The nominal consideration was $2,000, and it could not very well be extended as a mortgage beyond that without some clear explanation. No one gave any full testimony upon its character and consideration as a mortgage but Leppig himself. If it was a mortgage at all, it was an indemnity mortgage, and there is no evidence in the cause what particular debts then existed which were meant to be covered by it. It seems entirely clear from Leppig’s testimony and garnishee disclosure taken together that nothing was actually due him at the date of the levy. We think when a controversy arises concerning a mortgagee’s rights under a mortgage with any one interested in questioning it, that he is bound to prove the amount and conditions of his claim. Without this no one else can tell what his own rights are in the property or against it, and a mortgagee has no right to withhold such information. If he has rights he has the means possessed by no other person of explaining them, and he is bound to explain them. Nothing proper to be called an explanation is given here. Assuming that he had mortgage rights and was in possession under them — upon which we shall have more ’to say hereafter, — the question arises, what rights an execution creditor possesses under such circumstances. There is no testimony which in any degree tends legally to show either that there had been any default, or that if there had been, Leppig had possession with any purpose of enforcing the mortgage for that default. The statute of 1861, whereby for the first time the interest of - a mortgagor of chattels was made subject to levy, allows such levy and a redemption by the execution purchaser, “ at any time before the actual foreclosure of such mortgage.” Comp. L., § 6097. A mortgage is not actually foreclosed until the right of redemption is lost, and that can only be when there has been a sale of the property so that some one sets up á title no longer conditional. Under our statutes, while the chattel mortgage is not a sale and is only a security, the policy of the law favors, and in some cases requires, the assumption of possession by the mortgagee, on peril of avoidance as against creditors. Comp. L., § 4706. If then the statute allowing levies cannot be made to cover property in the hands of the mortgagee before foreclosure, it may be defeated altogether. The statutes all go upon the presumption that all property mortgaged will be held by the mortgagee. His possession until foreclosure is merely as bailee of the mortgagor with a special interest. We think an officer may under the statute make such a levy, and that every mortgage is subject to that statutory condition. The officer cannot sell in parcels while the mortgage is in force. Worthington v. Hanna, 23 Mich., 530. But while he is bound to hold his possession in such a way as not to interfere with the mortgagee’s right of sale, he has a right to retain it in custody until a sale is made, and he has a right to know the amount and conditions. The case of Cary v. Hewitt, 26 Mich., 228, contains some views which are substantially applicable here, (although in that case there had been no assumptions of possession by the mortgagee before the levy), and refers to the entire practicability of sustaining mutual rights. If a mortgagee for any honest purpose undertakes to take possession of property before default, it can only be for the purpose of safely storing it apart from other property which is in daily use. He cannot use it as his own or for ordinary uses, and cannot possibly be put to any inconvenience by a concurrent occupation of any one else. The officer cannot make a sale of the mortgagor’s interest to any advantage unless the property can be shown to bidders. And when the mortgagee proceeds to sell, there is no reason why he cannot so far act in concert with the officer as to protect both rights. Unless he has actually advertised before the levy, tbe sale by tbe officer will usually take place before the mortgagee can have any occasion to act at all. It is easy to imagine possible conflicts, but sensible and honest men can as easily avoid them. Concurrent possessions are not rare, and if the right exists it must be respected or the parties must take the consequences. We have deemed it necessary to consider this point in deference to the assumption of the court below that it was a turning point in the cause. For reasons to be presently mentioned, we do not see much ground for it. The statute in regard to recording chattel mortgages goes further than the previous section concerning transfers of an absolute character, and makes unrecorded securities on personal property not only presumably, but absolutely void against creditors, unless “accompanied by an immediate delivery, and followed by an actual and continued change of possession.”. § 4706. We have found nothing in the case tending to show that Leppig set up any claim to possession as mortgagee at all. We gather from the testimony of Leppig’s witnesses and his own that Christ was the proprietor of an establishment for selling beer and also for its manufacture, and had a general salesman named Keppler and various subordinates. A short time before this levy Christ was charged with a felony for which he was in the succeeding January sent to State prison. Up to the time of his imprisonment in the local jail, which was some time in December, he remained in the house and premises on the same apparent terms of residence as before. After his sentence was ended he returned and took charge as before. There was no change made public at any time so far as any evidence goes. The only evidence of possession was that of Leppig after the bill of sale was made, who states in his testimony: “I went and notified Hugo Keppler that it was all mine, and hired him to peddle out this beer and do the business generally.” Keppler paid all the moneys collected, as Leppig states, to Miss.Christ, with whom Leppig settled every week. The' bill of sale was made simultaneously with a conveyance of the realty, and as was distinctly sworn to by Mr. Blair, who did the business, and is uncontradieted by Leppig, there was but one consideration for the whole transaction, which superseded the old chattel mortgage, and Leppig gave his own notes for about $8,000 to pay for the property. When Leppig swore to this assuming of possession he had given no hint of continuing to hold any claim as mortgagee, and was swearing to possession as owner. There is nothing to show that Keppler had any right to attorn or did attorn to Leppig on any claim either as owner or mortgagee, and no evidence of any delivery by Christ. The possession, if it was a possession, was taken distinctly as owner. No mortgagee had as such any right to assume and continue the business of selling beer, and no possession was taken in any other way than by the continued employment of the salesman. A large part of the property was not intended for sale in the business, but was apparatus auxiliary to it. We think that when Leppig by his cross-examination admitted that he held the property only by way of security, he admitted in view of his other testimony that he was not in possession as a mortgagee in default or for any direct purpose in aid of it, and that if he was in possession at all it was really for some other purpose. It is certainly a somewhat serious question how far he-could rely on the trial on two inconsistent positions, and how far he could turn a possession which if obtained at all was obtained under pretense of ownership, into one-of a different kind. As this question was not passed on by the court below, we shall not discuss it. But the-charges based on a supposed claim of possession as mortgagee after default are objected to, and not, we think, sustained by the proof. The same objection lies-to the charges based on possession as owner upon purchase made in payment of past debts. If there was a purchase at all, it was on credit for about $8,000, all payable in the future, so far as the testimony shows on the record, and if this should turn out to be the case it would have a bearing on the question of whether there was any good faith in the purchase. The charge is not supported by the evidence. The question of possession becomes important in any point of ..view.. If Leppig took possession to- save the-property for Christ, it was of course a fraud. If he -had a mortgage claim, then setting up any other as against creditors levying on a mortgaged interest would be at least a badge of fraud. If he was not in possession in good faith under • his mortgage claim, and was no more than a mortgagee, it is difficult to see how the inference of fraud can be avoided. If there was no real and actual change of possession, his security would- be absolutely void as against the levy. If a purchaser, it would be presumptively fraudulent. Whether such a change existed was therefore a prominent point. The court below refused to allow the character of the possession to be proved by the declarations of. Keppler and other persons employed, made in reply to inquiries addressed to them by those who had a right to make them. Any creditor has a right to know whether a person in possession of property has any claim hostile to his right to levy. The bill of sale being unrecorded, and the rights of Leppig under that being secret, and Christ being under arrest, the persons in charge are those of whom inquiry would most naturally be made, and we think their answers would be evidence in the nature of res gestee to explain the possession. If not, we do not see how a sheriff or creditor could be protected. • In the present ease all the testimony shows there was no apparent change in the business. No one but Leppig and Keppler, who was either Leppig’s or Christ’s agent, knew the facts, if there were any, which made the possession different. These were all hostile to the creditors, or presumably so, and they cannot be required to make them their own witnesses, when the ease is prima facie such as to require explanation from the other side. ■ - If a levy made under such circumstances, with every assurance of its legality, can be invalidated by a private arrangement denied practically by the only person of whom inquiry could be made, it certainly should be very clearly proved, and parties should not be readily made responsible as wrong-doers when their action has been invited by the possessor. The extraordinary shifting of claims from sale to mortgage and the complications caused by allowing both claims, which are clearly inconsistent with each other, to go into the case together, so that one may stand if the other falls, make it difficult to deal with the controversy. We are strongly inclined to think that no such inconsistent grounds can be allowed to be urged against such a levy.' But as the case must go back for a new trial, this, as well as some other matters not as plainly presented by the record as they might be, will probably be examined by court and counsel. Judgment must be reversed with costs and a new - trial granted. The other Justices concurred.

Marston, J. The proofs in this case are not as clear and satisfactory as we could wish. We are of opinion that at the time complainant deeded his land to defendant William and took back a life lease, it was understood and agreed that complainant should have a home with and be supported by the grantee. In the absence of such an agreement no good reason is given why such a conveyance should have been made. There was no consideration paid by the grantee therefor, nor any agreement to pay any consideration, nor is it apparent how complainant was to be benefited by the transfer except in the manner stated. The conveyance made by William to his brother John of the lands in question after the dispute between him and complainant had arisen, and the circumstances surrounding that transaction tend strongly to support the complainant’s view of the case. We have no doubt but that at the time complainant made the conveyance to defendant, he was informed by defendant and believed that his (defendant’s) farm was free and clear from all encumbrances, and that defendant thereby was enabled to afford him a home, whereas in fact it was heavily encumbered, and has since passed out of defendant. The evidence tends quite strongly to show that a quiet, orderly and entirely respectable home with proper accommodations were not given complainant, and that under all the circumstances he was justified in leaving, and asking for a reconveyance. The decree must be affirmed with costs. The other Justices concurred.

Graves, J. The parties were on a race course engaged in trotting horses before sulkies, and the horse and sulky employed by Mizner ran against the sulky occupied by Erazier and injured him and the horse and broke the sulky. He sued in trespass and obtained a verdict, and error is charged against some of the proceedings. The general ownership of the horse and sulky was in other parties. His connection with the sulky is very imper fectly described in tbe declaration, but my brethren are of opinion that as there was no demurrer, it ought to be taken that the allegation imports that he held as bailee, and they also think that as he would be answerable over, he was entitled to full damages as against a mere wrong-doer. His control of the horse appears from his own testimony. He swore that he did not own the horse, but had it for the season and was to receive fifty cents a day from the owner for taking care of it and to have also what he could win with the horse in trotting races. We are not called upon to say whether the law would or would not construe the latter part of this arrangement as not lawful. It is only important now as one of the circumstances to show the precise nature of Frazier’s right to the horse and the very strict conditions upon which he held him. And this is quite material, because it is not competent to go outside of the circumscription of his right of use or employment for any criterion of damage recoverable at his suit. Now he held the horse as bailee, but subject to the special terms and with the restricted rights agreed upon. He was not entitled to let him at all, and was bound to personal trust. He was to take uninterrupted care of him. As a consequence he could not claim damage upon any theory of what the horse’s services at hire would have been worth in the market, because his right and interest did not include any license or authority to let the horse. And in the next place it was not competent to estimate and allow damage upon the hypothesis of possible race winnings. Nothing could be more uncertain than a calculation of the fruits of such matters of chance, and any attempt to graduate recovery in a court of law by supposition of . what might have happened and what would have been accomplished in horse racing in the course of the season is absurd. In ruling to allow it, as was the case in admitting evidence and in instructing the jury, the court erred. The only ground of damage apparent on account of loss of use of the horse is Frazier’s deprivation of such reasonable use as he might have had in person in giving the horse proper exercise. And there is no evidence applicable to that view. No further discussion is necessary. We discover nothing in the case to justify remark upon some other topics noticed in the briefs. For the error in the rulings in regard to damages, the judgment must be reversed with costs and a new trial ordered. The other Justices concurred.

M. J. Kelly, J. This case involves the interpretation of the Michigan no-fault insurance statute of limitations provision, MCL 500.3145(1); MSA 24.13145(1). Defendants argue that Richards v American Fellowship Mutual Ins Co, 84 Mich App 629; 270 NW2d 670 (1978), lv den 406 Mich 862 (1979), was wrongly decided. Plaintiffs ask us to line up on the side of Richards. Although the trial court’s opinion was not issued until May 10, 1979, 10 months after Richards, it simply ignored Richards. We do not approve that tactic, but neither are we able to follow the Richards holding. This case was submitted on a stipulated concise statement of facts and proceedings in lieu of a transcript. The statement follows: "1. On August 27, 1975, Margaret Aldrich suffered bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle. "2. That at the time of this motor vehicle accident, Margaret Aldrich maintained a policy to provide security for payment of personal protection insurance benefits with Defendant-Appellee Auto-Owners Insurance Company (Auto-Owners). "3. On September 16, 1975, Margaret Aldrich submitted a written application for benefits under the Auto-Owners policy. "4. On or about November 22, 1976, Margaret Aldrich and Alfred Aldrich commenced a civil action in the Circuit Court for the County of Montmorency alleging, inter alia, the failure of Auto-Owners to pay personal protection insurance benefits in conformity with the terms of the policy. "5. That Auto-Owners timely answered the Complaint, affirmatively pleading the defense of the statute of limitations, MCL 500.3145, and moved for accelerated judgment. "6. That by its Order of May 29, 1979, the trial court, the Honorable Joseph Swallow presiding, granted the motion of Auto-Owners for partial accelerated judgment, to the effect that any claims of the Plaintiff for personal protection insurance benefits incurred prior to November 22, 1975, are barred.” "> The applicable statutory provision is § 3145(1), supra, which reads in pertinent part as follows: "(1) An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor’s loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced.” Defendant Auto-Owners does not argue that plaintiffs action was barred under the above section, but it contends that plaintiffs recovery must be limited to expenses incurred within one year prior to the date the law suit was commenced in order to give effect to the plain language of the statute. The Richards panel held that the no-fault time bar is tolled from the date an insured gives notice of loss until the date of formal denial of liability by the insurance company. Under Richards, therefore, the permissible period of recovery runs, apparently, from one year prior to the commencement of the action only if there is no hiatus between the giving of notice of loss by the insured and the denial of liability by the insurance company. This seems to us contrary to the plain language of the statute and results in impermissible judicial legislation. We believe the statutory language is unambiguous. and see no need for departing from the literal interpretation. See Becker v Detroit Savings Bank, 269 Mich 432, 436; 257 NW 853 (1934). In construing the statute to include a tolling provision the Richards Court stated: "Thus, § 3145 must be construed in accordance with the Legislature’s purpose in enacting no-fault insurance, i.e., that persons injured in automobile accidents be promptly and adequately compensated for their losses arising out of the motor vehicle mishap. Shavers v Attorney General, 65 Mich App 355, 370; 237 NW2d 325 (1975), aff’d in part 402 Mich 554 (1977). See also MCL 500.3142(2); MSA 24.13142(2). "If we were to accept defendant’s interpretation of the statutory provision, we would in effect be penalizing the insured for the time the insurance company used to assess its liability. To bar the claimant from judicial enforcement of his insurance contract rights because the insurance company has unduly delayed in denying its liability would run counter to the Legislature’s intent to provide the insured with prompt and adequate compensation.” 84 Mich App 629, 634. If one of the purposes behind, the quoted provision of the act is to encourage claimants to commence their actions in a timely fashion, cf., Davis v Farmers Ins Group Cos, 86 Mich App 45; 272 NW2d 334 (1978), it should not encourage procrastination by either party by undercutting such policy. The insured is not barred from seeking judicial enforcement of his claim and we have heard no argument in favor of a declaration of public policy to the effect that resort to the courts is an unacceptable or undesirable alternative. We also find unpersuasive the Richards Court’s reliance on The Tom Thomas Organization, Inc v Reliance Ins Co, 396 Mich 588; 242 NW2d 396 (1976), as support for its conclusion that failure to toll commencement of the one-year period permits insurers to avoid certain of their obligations. In Thomas, the Court considered the effect of a one-year statute of limitations imposed by the insurer in the contract of insurance which was more severe than that herein; it would have barred all suits to recover benefits "unless the same be commenced within twelve (12) months next after discovery by the insured of the occurrence which gives rise to the claim”. Thomas, supra, 592. There are, however, differing effects of contractual versus statutory periods of limitation. This Court has held that the intent of contracting parties, as evidenced by the instrument’s language and attendant facts and circumstances, could prevail over the "literal meaning of the expressions used in the agreement”. See Gary Boat Club, Inc v Oselka, 31 Mich App 465, 470; 188 NW2d 127 (1971), lv den 385 Mich 770 (1971), and Stark v Budwarker, Inc, 25 Mich App 305; 181 NW2d 298 (1970). Although we are permitted the same scope of review when the Legislature’s intent does not correspond with the statute’s plain meaning, Rozelle v Dora, 103 Mich App 607; 303 NW2d 43 (1981), Bingham v American Screw Products Co, 398 Mich 546, 563; 248 NW2d 537 (1976), no contrary meaning is evidenced here. In Dozier v State Farm Mutual Automobile Ins Co, 95 Mich App 121, 128; 290 NW2d 408 (1980), the Court noted the following authority as articulating the proper method for interpreting statutes of limitations: "Statutes of limitations are entitled to be fairly construed, so as to advance the policy they are designed to promote, and should not be defeated by an overstrict construction. "On the other hand, the judiciary must strictly adhere to such periods of limitation, and in construing such statutes, the court should consider the purpose thereof.” 20 Michigan Law & Practice, Statute of Limitations, § 2, pp 545-546. (Footnotes omitted.) Dozier also quoted Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974), for its statement of the policy interests advanced by limitations statutes: "Statutes of limitations are intended to 'compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend’; 'to relieve a court system from dealing with "stale” claims, where the facts in dispute occurred so long ago that evidence was either forgotten or manufac tured’; and to protect 'potential defendants from protracted fear of litigation’.” Accord, Davis v Farmers Ins Group, 86 Mich App 45; 272 NW2d 334 (1978), and Keller v Losinski, 92 Mich App 468; 285 NW2d 334 (1979), discussing § 3145(1). Following the Richards analysis to its logical conclusion could produce a result directly contrary to the intent of the instant statute, "to encourage claimants * * * to bring their claims to court while those claims are still fresh”. Burns v Auto-Owners Ins Co, 88 Mich App 663, 666; 279 NW2d 43 (1979). It is not unlikely that permitting the limitations period to be tolled would lead to months and years of delay on some claims, a result not envisioned or intended by the Legislature. Applying § 3145(1) to the facts, we hold that the lower court properly barred that portion of the plaintiffs complaint seeking recovery for injuries incurred prior to November 22, 1975. Plaintiffs complaint, filed November 22, 1976, could not reach back to recover for injuries incurred more than one year before. The trial court’s entry of partial decelerated judgment was not error. Affirmed. Costs to appellee.

Bashara, J. Plaintiffs sought recovery of damages incurred as the result of defendants’ alleged medical malpractice. During the first week of trial, defendant Detroit-Macomb Hospitals Association settled with plaintiffs. Subsequently, the jury returned a verdict of no cause of action as to the remaining defendants. Plantiffs now appeal the jury’s verdict. Drs. Sarnacki and Singson practiced medicine together as South Macomb Gynecologists, P.C., also a named defendant in the action. On June 8, 1973, plaintiff Josepha Croda consulted with Dr. Sarnacki concerning problems which included a dropped uterus, a herniated rectum, a lacerated cervix, excessive bleeding, pain on intercourse, constipation, and urinary incontinence. Sarnacki informed plaintiff that she needed a hysterectomy and a cystocele-rectocele. She underwent the surgery in the South Macomb Hospital on July 30, 1973. Subsequent to the surgery, plaintiff’s bladder did not maintain its proper tone. As a result, catheterization was necessary to evacuate urine from the bladder. Two days after her discharge from the hospital, plaintiff went to the office of South Macomb Gynecologists and Dr. Singson removed the catheter. When Mrs. Croda began to notice urine in her vagina, Sarnacki reinserted a catheter and referred her to defendant Dr. Theodore Pantos, a urologist, who treated her from August 21, 1973, to November 2, 1973. As part of his treatment, Dr. Pantos performed a right ne phrostomy on September 11, 1973, and a reimplantation of the right ureter on November 9, 1973. Plaintiff alleged that she sustained permanent injuries to her urinary system and right kidney as a result of defendants’ negligence. She averred that she had not been properly informed of the dangers inherent in the surgical procedure of July 30, 1973, and that Dr. Sarnacki had breached a contract to cure. Mrs. Croda further contended that Sarnacki departed from the standard of care in cutting her right ureter during surgery and by discharging her from the hospital prematurely. Plaintiff further averred that Dr. Pantos was negligent in failing to perform the right nephrostomy before September 11, 1973, when he knew that plaintiff had problems with her right kidney on September 4, 1973. Mrs. Croda also alleged that the delay resulted in further damage to her right kidney. She also claimed that, instead of a nephrostomy, Dr. Pantos should have performed a reimplantation of the right ureter on September 11, 1973. Plaintiff Antonio Croda’s claim was based on loss of consortium. Plaintiffs initially contend that the trial court erred in restricting the cross-examination of Dr. Pantos. Plaintiffs’ counsel began to ask Dr. Pantos whether he agreed with statements in the deposition of defendants’ expert witness, Dr. Urwiller. Upon objection by defendants, the trial court ruled that, since the deposition of Dr. Urwiller had not been admitted into evidence and he had not been called as a witness, plaintiffs’ attorney could not specifically refer to the deposition. It was further held that plaintiffs’ counsel could not inquire as to why Dr. Urwiller had not been called as a witness. Plaintiffs’ counsel was allowed, however, to ask Dr. Pantos his frame of reference in forming his opinion that Mrs. Croda had not suffered permanent kidney damage and the standard of care. A separate record was made in which plaintiffs attempted to impeach Dr. Pantos. Plaintiffs failed to show any contradiction between Dr. Urwiller’s deposition and Dr. Pantos’ testimony. Therefore, the deposition was not relevant as impeachment evidence, there being no significant difference between the opinions of the two doctors. We find no abuse of discretion in the court’s ruling. Lorenz Supply Co v American Standard, Inc, 100 Mich App 600, 615; 300 NW2d 335 (1980), People v Strickland, 78 Mich App 40, 54; 259 NW2d 232 (1977). Plaintiffs allege error in the following jury instruction: "Now there was an additional defendant in this trial which was South Macomb Hospital [sic] Association and as you recall I instructed you that South Macomb Hospital [sic] Association after a particular point in this trial would no longer be considered a defendant. South Macomb Hospital [sic] Association has settled the claim filed against it by the plaintiffs for the amount of four thousand dollars. If you determine to award Mr. and Mrs. Croda any additional money from the remaining defendants, you should first deduct the sum of four thousand dollars from any sum you feel the plaintiffs should receive as damage.” Plaintiffs argue that the instruction violated MRÉ 408, which states: "Rule 408 Compromise and Offers to Compromise. "Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” (Emphasis added.) We find MRE 408 inapplicable to the controversy at bar. The settlement was not introduced into evidence in order to prove the liability of the remaining defendants. In fact, it was not admitted into evidence at all. Plaintiffs assert for the first time on appeal that the trial court should have deducted the $4,000 from whatever judgment the jury may have reached rather than advise them to make the deduction themselves. By telling the jury that plaintiffs recovered $4,000 from the hospital, they contend the jury was allowed to speculate that their claim was without merit. Admission of proof of a prior settlement agreement between a defendant and the plaintiff is a matter of judicial discretion. Wilson v W A Foote Memorial Hospital, 91 Mich App 90, 97; 284 NW2d 126 (1979), lv to appeal held in abeyance 409 Mich 868 (1980), Reno v Heineman, 56 Mich App 509, 512; 224 NW2d 687 (1974). But see, Brewer v Payless Stations, Inc, 94 Mich App 281; 288 NW2d 352 (1979), lv gtd 409 Mich 871 (1980). Until the Supreme Court holds to the contrary, we agree with the conclusion in Wilson, supra, that plaintiffs’ proposal raised only on appeal is a permissible alternative which the trial court is not required to follow. Wilson, supra, 98. In view of the fact that the hospital association was an active party during the initial days of trial, the court’s instruction was proper in order to inform the jury of the party’s dismissal from the suit. The trial court’s instruction was the only noted mention of the settlement to the jury. There is no reason to assume that, based upon this instruction, the jury concluded that plaintiffs’ claims were without merit. We fail to find an abuse of discretion in the trial court’s ruling. The third instruction challenged on appeal concerns the apportionment of damages among the defendants. The trial court substantially charged the jury with the standard jury instructions on apportionment, SJI 41.04 and SJI 41.05. Based upon the evidence presented, we find no error in the charge. Naccarato v Grob, 384 Mich 248, 255-256; 180 NW2d 788 (1970). Plaintiffs challenge one final jury instruction: "Now, the question is, 'How do you as jurors determine what the standard of practice is and whether or not it has been observed by the defendants in this case?’ "Jurors and judges do not know and are not permitted arbitrarily to say what are the proper methods of treating a patient under the circumstances in this case. This is a medical question. What is or is not a proper practice by a urologist or a gynecologist, the treatment of a patient or what is or is not standard of practice of the usual practice in the community is a question for experts and can be established only by their testimony. That is, it is only those learned in urology or gynecology who can say what should have been done or what was done or not to have been done and it is only those learned in urology or gynecology who can say what was done was proper.” Plaintiffs contend that the phrase "learned in urology or gynecology” could have misled the jury into concluding that, contrary to established law, the expert must be a specialist in those fields in order to be a competent witness. We agree with plaintiffs’ initial premise that an expert need not be a board-certified specialist in the field in order to testify as to the standard of care of that practice. However, it is well-established that the expert witness must possess the necessary learning, knowledge, skill or practical experience that would enable him to competently testify concerning that area of medicine. Siirila v Barrios, 398 Mich 576, 591; 248 NW2d 171 (1976). It is therefore clear that plaintiffs’ expert, Dr. Miller, was not required to be a gynecologist or urologist in order to qualify as an expert witness. He stated that he was learned in those areas due to his medical training, experience and continuing review of the literature in those fields. The trial court properly allowed Dr. Miller to testify as an expert witness. MRE 702, S C Gray, Inc v Ford Motor Co, 92 Mich App 789, 805; 286 NW2d 34 (1979), MCL 600.2912a; MSA 27A.2912(1). However, plaintiffs argue that by giving the above instruction, Dr. Miller’s credibility was diminished by the court. They read the instruction as requiring the expert to be an actual member of one of the named specialties, a greater qualification then established by law. We disagree with plaintiffs’ interpretation of the instruction. The trial court told the jurors that they could not determine the standard of care on their own knowledge. Rather, the proper practice may only be established by one "learned in urology or gynecology”. We find the instruction to conform precisely to the requirements of Siirila, supra. Viewing the instructions as a whole, we find no reversible error. Moore v Foster, 96 Mich App 317, 321; 292 NW2d 535 (1980). Affirmed. Costs to defendants. J. H. Gillis, J., concurred. Consequently, we need not address plaintiffs’ novel suggestion that the deposition of one doctor may be introduced into evidence solely for the purpose of impeaching another doctor’s testimony. See MRE 707, People v Brown, 13 Mich App 222; 163 NW2d 829 (1968). An interlocutory appeal was granted in Brewer, where this Court reversed the judge’s pretrial ruling that evidence of the settlement of one defendant would go to the jury in order that it could deduct the amount from any judgment rendered. One issue under consideration by the Supreme Court in Brewer is "whether the jury hearing the plaintiffs case against one or more tortfeasors may be informed of a settlement between plaintiff and another tortfeasor responsible for the same injuries where the settlement does not directly relate to an issue of material fact in the case”, 409 Mich 871 (1980).

Per Curiam. Defendant appeals as of right his jury conviction and sentence for unarmed robbery, contrary to MCL 750.530; MSA 20.798, and breaking and entering with intent to commit the crime of larceny, contrary to MCL 750.110; MSA 28.305. Defendant was sentenced to concurrent terms of 10 to 15 years. Defendant broke into the house of Evelyn Allen on October 13, 1973, by removing the glass from the outer door and breaking the glass on the main door whereupon he entered the house. Evelyn Allen, who was 79 years old at the time of the incident, was home when defendant broke in and, upon hearing the noises from the kitchen, proceeded to the kitchen to investigate. After she turned on the light in the kitchen, defendant grabbed her by the throat and demanded money from her. Mrs. Allen told him the money was in her bedroom. They proceeded to the bedroom where Mrs. Allen gave defendant $65. Defendant then forced Mrs. Allen to take approximately 60 pills and then struck her on the head with a water pitcher. Defendant then left the house. Defendant was convicted on April 5, 1974, by a jury of two charges of breaking and entering, one charge of unarmed robbery and assault and battery. Those convictions were set aside by this Court on defendant’s appeal in an unpublished per curiam opinion. People v Murry, Docket No. 20975, decided September 22, 1976. Other facts necessary for decision of the issues will be presented with the discussion of the issues. Defendant raises four issues on appeal. He claims that the trial court erred in finding the complainant unavailable for purposes of admitting her prior recorded testimony. The complainant, Evelyn Allen, was 79 years old when she testified at the defendant’s first trial on April 4 and 5, 1974. A hearing was held on September 24, 1979, to determine whether Evelyn Allen was "available” to testify as defined in MRE 804(a)(4), which states that the declarant is unavailable when she is "unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity”. This rule is consistent with former Michigan law, People v Schepps, 217 Mich 406; 186 NW 508 (1922), and does not violate the accused’s constitutional right of confrontation, People v Doverspike, 5 Mich App 181, 190; 146 NW2d 85 (1966), aff’d 382 Mich 1; 167 NW2d 285 (1969). Evidence from three witnesses, including her physician, indicated Mrs. Allen, who was 84 years of age at the time of the hearing, was hard of hearing, was extremely upset about the possibility of retestifying, and had suffered from hypertension, recurrent pneumonia, and myocardial ischemia. Her doctor indicated that she could physically come to court and testify but that it would be detrimental to her health. The evidence clearly established that the witness was physically or mentally infirm, and, under these facts, we cannot say that the trial court was wrong in finding the witness unavailable. The former testimony which was admitted at trial was that which was taken at defendant’s prior trial and his counsel had an opportunity and similar motive to develop the testimony. Therefore, the former testimony is admissible at trial under MRE 804(b)(1) and we do not find error in its admission. Defendant next claims that his confession was erroneously admitted into evidence. This issue was previously determined by this Court and no new facts were alleged. The law of the case doctrine precludes that issue from being raised on this appeal. People v Drew, 83 Mich App 57; 268 NW2d 284 (1978). Defendant claims that conviction of both breaking and entering with intent to commit larceny and unarmed robbery violates the double jeopardy prohibition of the Michigan and United States Constitutions. Although this issue was determined on the prior appeal, defendant contends that Peo pie v Jankowski, 408 Mich 79; 289 NW2d 674 (1980), is new authority which precludes application of the law of the case doctrine. We disagree. In Jankowski, the defendant was found guilty of armed robbery, larceny over $100 and larceny in a building as a result of a single transaction and the court held that "it was factually and logically impossible for the defendant to be guilty of armed robbery without at once being guilty of larceny in a building and larceny over $100”. In this case, defendant committed more than one act which resulted in two crimes. Defendant was guilty of breaking and entering at the time he removed the glass from the door and ultimately entered the house. Defendant was guilty of unarmed robbery at the time he grabbed Mrs. Allen around the throat and demanded money. Jankowski is not new authority for defendant and his claim is therefore precluded by the law of the. case doctrine. Finally, the defendant argues that the Court should have disclosed a supplemental portion of the presentence report which the trial court had made confidential. The trial court permitted both the prosecuting attorney and defense counsel to look over this report. The court prohibited defense counsel from disclosing the report to defendant because it dealt with problems which defendant had in prison and the court believed that disclosure of the details of the problems would impair defendant’s rehabilitation process while in prison. Additionally, at the request of defense counsel, the trial court placed very little weight upon the report stating that the subject matter was more appropriate for a parole board. Defendant’s claim is without merit for three reasons. GCR 1963, 785.12 specifically provides that confidential reports need not be disclosed to a defendant. The trial court stated on the record that part of the report was confidential and defendant had been informed as to the substance of the report. Furthermore, when the accuracy of information which is not disclosed is challenged on appeal, defendant must object to the failure to disclose. People v Czerwinski, 99 Mich App 304; 298 NW2d 16 (1980). Since no objection was placed before the trial court, this issue is not properly preserved for appeal. Finally, defense counsel requested that the trial court place no value on this report. On appeal, counsel argues that the failure to place any weight on the report denied defendant his right to an updated presentence report under People v Triplett, 407 Mich 510; 287 NW2d 165 (1980). Counsel cannot request a certain action in the trial court, and then, after the request has been followed by the trial court, argue on appeal that the action was error. People v Suiter, 82 Mich App 214; 266 NW2d 762 (1978), and People v Alexander, 76 Mich App 71; 255 NW2d 774 (1977). Finding no error, the decision of the trial court is affirmed.

Danhof, C.J. Plaintiffs appeal as of right from the circuit court’s decision finding no cause of action as to their claims against defendants Holloway Sand and Gravel, Inc., and its president, Daniel Holloway (henceforth referred to collectively as Holloway). The appeal followed the trial court’s denial of plaintiffs’ motion for additional findings or a new trial. Plaintiffs C. Merle Dixon and his wife, Alma Dixon, were the owners of approximately 126 acres of land in Washtenaw County. On March 12, 1973, the Dixons entered into a written agreement with Holloway authorizing Holloway to determine whether a commercial sand and gravel mine operation was feasible on the property and, if so, granting Holloway the right to remove sand and gravel for a two year period commencing May 1, 1973. Subsequent drilling tests showed the presence of large amounts of sand and gravel. Several months after the first agreement was signed, the parties executed a second document entitled "Sales Agreement” which was dated retroactively to March 12, 1973, and which, by its terms, superseded the original agreement. Paragraph 2 of the new agreement stated: "That, the Sellers [Dixons] do hereby bargain and sell to the Purchaser [Holloway, Inc.] who agrees to pay for the same, on the terms and conditions hereinafter set forth, all sand, stone and gravel located in and on the * * * premises.” The Dixons were to be paid at a rate of ten cents per ton for all materials removed from the premises and the sales agreement contained the following provision for duration and renewal: "This agreement shall be for a period of three (3) years from and after April 1, 1973. It may be renewed by Producer [sic] by giving notice of exercise of option to renew at least sixty days prior to its expiration, in writing.” Holloway was required to remove at least 50,000 tons of gravel per year or pay the sellers its equivalent value ($5,000). Holloway was permitted to stockpile up to 75,000 tons of material on the premises and was allowed to conduct mining operations on all but 26 acres of the property. Holloway started mining sand and gravel on the property pursuant to the sales agreement. C. Merle Dixon hired an attorney, Charles Dever, in November of 1974 to modify the agreement to allow capital gains treatment of his income from the mining operation. He also apprised Dever that Holloway was stockpiling excessive amounts of material on the premises and damaging trees and hedge rows. Negotiations took place and a new agreement was drafted and signed by Holloway; however, Dixon did not sign this agreement. In April of 1975, the Dixons retained another attorney, plaintiff William E. Evans, for estate planning purposes. Subsequently, the Dixons agreed to sell Evans the property. On December 30, 1975, Evans sent a letter to Holloway stating that the proposed agreement drafted by Attorney Dever and signed by Holloway was unacceptable. He requested further negotiations regarding a new agreement. A meeting took place in January of 1976 between C. Merle Dixon, Evans and Holloway manager Nicholas Jabe, at which restoration of the gravel pit and certain statutory requirements were discussed. Holloway was not advised at this time that Evans intended to purchase the property. Jabe sent a letter to the Dixons on January 22, 1976, advising them of Holloway’s intent to exercise its option to renew pursuant to the March 12, 1973, sales agreement. The pertinent part of the letter stated: "As per our Sales Agreement dated the 12th day of March, 1973 for the period of three (3) years from and after April 1, 1973. Please take notice that we would like to exercise our option to renew our Sales Agreement for the removal of Sand and Gravel from your property located at 2170 S. Zeeb Road. Ann Arbor, Michigan. "May we please hear from you as soon as you have the new agreement ready. Thank you for your kind consideration in the above matter.” On March 22, 1976, a warranty deed was executed whereby C. Merle Dixon conveyed the property to Evans and his wife for the price of $74,500. As part of the deal, the Evanses paid accrued taxes totaling $9,278 and purchased household and farm items for $15,000. In a separate conveyance, Dixon was granted a life estate in the property. On April 15, 1976, Evans sent a letter to Holloway giving notice that he had purchased the property and that Holloway’s presence on the property constituted a continuing trespass as of March 22, 1976. Holloway did not respond to this letter. On April 19, 1976, plaintiffs William and Katherine Evans filed suit in Washtenaw County Circuit Court seeking an ex parte restraining order to prevent defendants from continuing sand and gravel mining on the property. The complaint alleged that the sales agreement had not been renewed or was not binding on the Evanses. Defendants filed an answer and counterclaims on April 22, 1976, contending that the Evanses were guilty of tortious interference with contractual relations, fraudulent representation and conspiracy. Plaintiffs Evanses filed supplemental pleadings on two occasions, adding counts to their original complaint. These included allegations of misrepresentation, breach of agreement due to excessive stockpiling of sand and gravel and fraudulent accounting practices. They also claimed damages for injury to their character and reputations due to false and malicious allegations in defendants’ counterclaim. The trial court initially denied the request for an ex parte restraining order and subsequently refused to issue a temporary injunction after hearing arguments on an order to show cause issued at the request of plaintiffs. On May 13, 1976, defendants filed a motion for summary judgment, which was granted by the court on July 26, 1976. In its opinion, the court found that the sales agreement created an easement or proñt a prendre binding on the Evanses and also concluded that Holloway effectively exercised the option to renew the agreement. The order was appealed to this Court, which reversed on November 10, 1976, in an unpublished per curiam opinion. The case was remanded with instructions to the trial court to determine what type of property interest was created by the sales agreement and whether or not defendants had violated the terms of the agreement. On May 12, 1977, plaintiff C. Merle Dixon instituted an action against Holloway. His complaint alleged several breaches of the sales agreement on the part of defendants, including continuation of operations after the agreement had expired, excessive stockpiling of sand and gravel, failure to properly account for sand and gravel removed and failure to compensate for material removed. Claims of fraud and misrepresentation were also contained in the complaint, which sought relief in the form of an accounting, damages and an injunction. Plaintiffs William and Katherine Evans filed a "Second Amended Complaint” on June 29, 1977, which basically repeated the allegations of their original complaint and its amendments. The Evanses’ and Dixons’ actions were consolidated for trial, and a bench trial was conducted. On January 22, 1979, the court rendered its opinion, finding no cause of action regarding all of the plaintiffs’ claims as well as defendants’ counterclaims. The court retained jurisdiction to supervise the reclamation of the land pursuant to the sales agreement. Plaintiffs first challenge the trial court’s determination that Holloway was the grantee of an interest in land under the sales agreement, consisting of either an easement in gross or a proñt a prendre. They contend that the agreement created a mere revocable license for Holloway to enter the land and remove sand and gravel. A proñt a prendre is a right growing out of the soil. It involves primarily a power to acquire, by severance or removal from another’s land, some thing or things previously constituting a part of the land. St Helen Shooting Club v Mogle, 234 Mich 60, 65, 68; 207 NW 915 (1926). An example of a proñt a prendre is the right to enter upon the lands of another and remove gravel or other materials therefrom. Stockdale v Yerden, 220 Mich 444, 448; 190 NW 225 (1922), State Highway Comm’r v Fegin, 2 Mich App 698, 701; 141 NW2d 312 (1966). An easement is a privilege without profit which the owner of one parcel of land may have in the lands of another. Hasselbring v Koepke, 263 Mich 466, 479; 248 NW 869 (1933). An easement in gross is not appurtenant to any estate in land but constitutes a personal interest in, or right to use, the land of another. Smith v Dennedy, 224 Mich 378; 194 NW 998 (1923). In the present case the trial judge failed to distinguish between an easement in gross and a proñt a prendre; however, such failure is immaterial because of the similar nature of these property interests. The Restatement of Property addresses this point as follows: "In this Restatement the term 'easement’ is so used as to include within its meaning the special meaning commonly expressed by the term 'profit.’ * * * "Interests of the sort here discussed under the title 'Easements’ have traditionally been discussed under the separate titles of 'Easements’ and 'Profits.’ In phrasing the rules applicable to each of these interests it has been found, however, that in no case was there a rule applicable to one of these interests which was also not applicable to the other. This is not true with respect to English law. Under that law the interest designated as an easement can exist only as an appurtenance of a dominant tenement, while a profit may exist independently of such a tenement, or, as it is commonly expressed, in gross. From this essential difference largely came the differentiating designations which we have inherited. The difference does not exist in this country. Here we have 'easements in gross’ as well as 'profits in gross.’ Since we have both 'easements in gross’ and 'profits in gross’ and since the rules with respect to both 'easements’ and 'profits’ can be stated in identical terms, it is much more convenient to use a single term to designate both interests rather than to use to the extent of annoying repetition the cumbersome phrase 'easements and profits.’ ” Restatement of Property, § 450, Special Note, pp 2901-2902. Plaintiffs’ primary argument is that the sales agreement did not convey an, interest in land because the formalities ordinarily accompanying transfers of real estate were lacking. Interests in land are usually created or transferred only by act or operation of law or by written deed of conveyance. Young v Thendara, Inc, 328 Mich 42, 51; 43 NW2d 58 (1950), Nowlin Lumber Co v Wilson, 119 Mich 406, 410; 78 NW 338 (1899). In the present case, the trial court looked beyond the "Sales Agreement” title of the disputed instrument and concluded that it was effective to create a proñt a prendre or an easement in gross. We believe it was proper for the judge to examine the entire agreement in order to ascertain the intent of the par ties. See, Wade v Day, 232 Mich 458; 205 NW 225 (1925), Akers v Baril, 300 Mich 619; 2 NW2d 791 (1942). In McCastle v Scanlon, 337 Mich 122; 59 NW2d 114 (1953), and McClintic-Marshall Co v Ford Motor Co, 254 Mich 305; 236 NW 792 (1931), cited by plaintiffs, the Supreme Court considered whether the rights of a party constituted a license or an interest in real property. Controlling factors were stated to be the absence of language in the agreement ordinarily used in conveyances of real estate and the lack of formalities normally observed in such transactions. The sales agreement in the present case did not contain the type of granting clause found in a deed and did not use terms such as "easement”, "lease”, or "proñt a prendre”. However, various provisions in the agreement support the lower court’s determination that a conveyance of a property interest was intended. The agreement included a legal description of the property. Paragraph 2, previously quoted, indicated a present sale of all sand, stone and gravel on the premises, utilizing the phrase "bargain and sale”. This language does not support plaintiffs’ argument that the actual transfer of ownership in the material was to take place after it had been removed and weighed. Paragraph 5 of the agreement stated: "That, failure of the Purchaser to make aforesaid payments shall subject it to cancellation of this Sales Agreement with the right of Seller to demand an execution of a reconveyance of the remaining materials hereby sold to Purchaser who shall have two (2) years from the date of this agreement within which to remove all materials included herein after which time the rights of any unmined materials shall revert to Seller * * (Emphasis added.) Reference to a "reconveyance” and a reversion of rights provides additional support for a finding that a present conveyance to Holloway was intended. The agreement provided for payment after removal of the sand and gravel, but the reason for such a term was recited in Paragraph 4: "That, because the amount of sand, stone and gravel cannot be ascertained exactly, Purchaser shall pay to Seller the sum of ten cents (10¡¡0 per ton for all sand, stone or gravel removed from said premises * * (Emphasis added.) Holloway did not have the ability to avoid a payment obligation by declining to mine material because of the $5,000 per year minimum payment requirement. Other relevant terms in the agreement gave Holloway "full rights of ingress and egress” and made its rights under the agreement exclusive. Based upon the language discussed above, we conclude that the trial court did not err in finding that Holloway possessed an easement or profit. The Evanses, as purchasers of the property with notice of Holloway’s interest, took subject to the easement (or proñt a prendre). 10 Michigan Law & Practice, Easements, § 17, p 112. The lower court’s decision does not contravene the statute cited by plaintiffs dealing with conveyances and recording of interests in real estate. MCL 565,1; MSA 26.521 states that interests in land may be conveyed in the manner specified therein but does not impose absolute requirements. The recording statute, MCL 565.29; MSA 26.547, provides that unrecorded conveyances of real estate are void as against any subsequent purchaser in good faith. The Evanses were not good faith purchasers under the statute because they were aware of the sales agreement and its terms. See, Wooden v Wooden, 72 Mich 347; 40 NW 460 (1888). The fact that an instrument of conveyance is not executed with such formalities as to permit it to be recorded does not prevent it from being good as between the parties thereto. Irvine v Irvine, 337 Mich 344; 60 NW2d 298 (1953). Although the Evanses were not parties to the agreement, we find the same rule applicable to them because of their knowledge of the sales agreement. Plaintiffs also contend that the lower court erred in concluding that Holloway exercised its option to renew the agreement for an additional three years. We disagree, based upon the January 22, 1976, letter from the Holloway manager to the Dixons. We further find no merit in plaintiffs’ argument that the lower court made inadequate findings of fact regarding the exercise of the option. Affirmed. Costs to defendants. Alma Dixon had died on February 27, 1976. Evans v Holloway Sand & Gravel Co, Inc, Docket No. 29777, released November 10, 1976. Mention of a two year term in this provision appears to have been an oversight, since elsewhere the agreement specified a three year term of duration.

N. J. Kaufman, J. Defendants were charged with conspiracy to steal property over the value of $100, MCL 750.356; MSA 28.588, MCL 750.157a; MSA 28.354(1), stealing property over the value of $100, MCL 750.356; MSA 28.588, conspiracy to receive or conceal stolen property, MCL 750.535; MSA 28.803, MCL 750.157a; MSA 28.354(1) and receiving or concealing stolen property, MCL 750.535; MSA 28.803. After a lengthy preliminary examination, defendants were bound over for trial. However, in response to a defense motion, the charges were dismissed when the trial judge determined that defendants’ right to a speedy trial had been violated. The people appeal as of right. In determining whether a defendant has been denied a speedy trial, the Michigan Supreme Court has adopted the rule of Barker v Wingo, 407 US 514; 92 S Ct 2182; 33 L Ed 2d 101 (1972). People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), People v Missouri, 100 Mich App 310; 299 NW2d 346 (1980). The test requires an ad hoc balancing of four factors: length of the delay, reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. The length of the delay is a triggering mechanism for consideration of the other factors. People v Hammond, 84 Mich App 60, 67; 269 NW2d 488 (1978), People v Collins, 388 Mich 680, 688-689; 202 NW2d 769 (1972), People v Classen, 50 Mich App 122, 126; 212 NW2d 783 (1973). Here, the delay was 19 months, one month in excess of the 18-month period after which prejudice is presumed. People v Grimmett, supra, 606. Therefore, the other factors are to be considered. In complex conspiracy cases, greater delays may be tolerated than in the prosecution of ordinary street crimes. Barker v Wingo, supra, 530-531, People v Missouri, supra, 320. Also, delays attributable to vigorous and aggressive pretrial tactics must not be considered in derogation of the right to a speedy trial. People v Collins, supra, 690-692, People v Cutler, 86 Mich App 118, 126; 272 NW2d 206 (1978), People v Hammond, supra, 67, People v Classen, supra, 126. Further, while delays inherent in the court system, such as docket congestion, are attributable to the prosecution, they have a neutral tint and should be given only minimal weight in determining whether the right to a speedy trial has been violated. People v Forrest, 72 Mich App 266; 249 NW2d 384 (1976), Barker v Wingo, supra. The prosecution below involved a complex conspiracy case with six defendants represented by individual retained counsel. The examination was initially delayed for approximately five weeks when one of the defense counsel was unprepared to proceed. The requested continuance was assented to by all defense counsel. Although the prosecution objected to any delay, the matter was adjourned. The subsequent date selected was chosen to accommodate all counsel. Ultimately, the examination took seven days to complete, stretching over two and one-half months time. Although the record is unclear as to why particular dates were selected, it is not unlikely that they, too, were also compromise dates chosen to accommodate all counsel, as well as to conform to the examining magistrate’s schedule. Although the trial court concluded that the delay was attributable to the magistrate’s practice of conducting preliminary examinations only on Fridays, the record reveals that of the seven days selected, four were other days of the week. At the conclusion of the preliminary examination, the court and all counsel agreed that all motions and memoranda and the trial court’s bindover decision should be based upon specific citation to the preliminary examination transcript. It was anticipated that the transcript would take at least one and one-half months to complete. The transcript, which turned out to encompass over 900 pages, was not, in fact, made available until five and one-half months later. It must here be noted that no objection was made by any defense counsel to this delay, nor were any motions ever made for delivery of said transcript. After the transcript became available, defense counsel, in contravention of an agreement to have all motions and briefs filed within 30 days of receipt of the transcript, waited as long as three months to accomplish those tasks. The prosecutor was two weeks late in filing his own brief in answer to the many briefs of defense counsel. Once all of the motions and briefs were submitted, the municipal court judge took approximately one and one-half months to render his decision. A trial date was set two months later by the circuit court. It is apparent that at least three months of the delay are attributable to defense counsel. The trial transcript was delivered approximately five months later than expected. The prosecutor was approximately two weeks tardy in the filing of his brief. The remainder of the delay was apparently caused by the complexity of the case, which required the reconciling of the schedules of seven attorneys, and congestion in the magistrate’s court docket. Thus, the bulk of the delay, while attributable to the prosecution, was of a neutral tint and should not be weighed heavily against the people. People v Forrest, supra, Barker v Wingo, supra. Defendants Goode and Mercier were the first to assert that they were denied the right to a speedy trial, but even they did so only after 14 months had passed. The other defendants only raised the issue in the circuit court. None of the defendants ever moved to set an early trial date. While this is explained by the delay in the bindover, the record fails to reveal that any of the defense counsel moved to expedite the examination process or the preparation of the transcript. Defendants never complained of the manner in which the preliminary examination was scheduled. This would indicate that defendants were unconcerned with the delay or chose to remain silent to build error into the record. People v Cutler, supra, 126-127, People v Classen, supra, 127. This failure to assert the right serves as strong evidentiary support that a violation has not taken place. People v Hammond, supra. The Michigan Supreme Court has recognized two types of prejudice accruing from pretrial delay: (1) prejudice to the defendant’s person in the form of incarceration or anxiety and concern over the pending charges; and (2) prejudice to the defense from loss of evidence or witnesses. People v Collins, supra, 694. All defendants have been out on bond since shortly after their arrests, so there has been no oppressive incarceration. Although some anxiety and stress has no doubt been felt by the defendants, the fact that they were free on bond pending the trial and the long absence of objection to the delay serves as an indication that they did not feel particularly prejudiced. People v Missouri, supra, 323. Likewise, there was no indication that any defenses to the charges have been impaired by the delay. We are left on appeal with the mere unsupported and unspecific assertions of counsel that witnesses’ memories have faded. Barker v Wingo, supra, 534. We must conclude that, although the delay below was excessive, consideration of all of the factors enunciated in Barker v Wingo, supra, demonstrates that defendants have not been denied their right to a speedy trial. Defendant Thomas argues on cross-appeal that the municipal judge erred in binding him over on the charges, contending that there was insufficient evidence to establish probable cause that he committed the offenses. Although this issue was not decided by the trial court, since it was raised by the defendant below, to avoid further delay, we consider it on appeal. An examining magistrate is to bind a defendant over for trial if it appears that a crime has been committed and that there is probable cause to believe that the defendant committed it. MCL 766.13; MSA 28.931, People v Asta, 337 Mich 590, 609-610; 60 NW2d 472 (1953). While positive proof of guilt is not required, there must be evidence on each element of the crime charged or evidence from which those elements may be inferred. People v Oster, 67 Mich App 490, 495; 241 NW2d 260 (1976), Iv den 397 Mich 848 (1976). Probable cause is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that a person accused is guilty of the offense with which he is charged. People v Dellabonda, 265 Mich 486, 490; 251 NW 594 (1933). A magistrate’s determination at the preliminary examination should not be disturbed unless a clear abuse of discretion is demonstrated. People v Doss, 406 Mich 90, 101; 276 NW2d 9 (1979). At the preliminary examination there was suffi cient evidence of defendant Thomas’s involvement. Robert Marlow, a Chrysler detective, testified that he observed both defendant Thomas and defendant Wood in the area where stolen parts had previously been hidden. Although Marlow could not identify the facial features of the men, he provided sufficiently detailed descriptions of them. Thomas was described as being black, in his early fifties, with a stocky build, about 5'8" or 5'9" and 200 pounds. He wore a blue jacket and gray coveralls. Marlow subsequently located Thomas in the Chrysler plant based on this description. Marlow observed defendant Wood load the stolen parts into an open-top rubbish container, while defendant Thomas appeared to keep a watch on the back door of the plant. Marlow’s description of Thomas’s activities indicated that Thomas may have been acting as a lookout for Wood. A conspiracy may be established by circumstantial evidence. People v Taurianen, 102 Mich App 17; 300 NW2d 720 (1980). Further, Marlow’s identification of Thomas was sufficient to establish probable cause since it was such as to support a reasonable ground of suspicion so as to warrant a cautious man in the belief of Thomas’s guilt. People v Dellabonda, supra. Reversed and remanded. Now that we have a district court system throughout the state, perhaps it would be advisable for district court administrators, after conferring with the state Supreme Court, to establish rules whereby lengthy and complex preliminary examinations could be finished without adjournment. Perhaps the court administrator could assign another district court judge to handle the day-to-day matters of the court while the judge assigned the preliminary examination could concentrate on its completion without the burden of scheduling such examination within his regular routine. We would further suggest that the district court enact some rules detailing a reasonable time period in which the preliminary examination transcript must be made available to the parties.

M. J. Kelly, J. Intervening defendant-appellant appeals from an opinion and order entered on May 9, 1980, by Wayne County Circuit Court Judge Thomas J. Brennan, denying a motion for an order of reimbursement of all sums of money paid by intervening defendant to plaintiffs. Plaintiffs received a jury verdict against defendants Baugh on January 16, 1976, in a suit commenced to recover for injuries arising out of an automobile accident. Intervening defendant-appellant, the Secretary of State, had defended the suit pursuant to the Motor Vehicle Accident Claims Act, MCL 257.1108; MSA 9.2808. The Secretary of State was ordered to pay the judgment pursuant to §§ 7 and 8 of the act. The Secretary of State paid the judgment of $16,977.35 and, on April 5, 1976, plaintiffs executed an assignment of judgment to the Secretary of State pursuant to MCL 257.1107(1); MSA 9.2807(1) and MCL 257.1109; MSA 9.2809. On March 8, 1977, defendant Paul Baugh filed an application for delayed appeal which was granted by this Court on August 29, 1977. On November 8, 1978, this Court reversed and remanded the case for a new trial. Plaintiffs failed to appear for the new trial, and the case was dismissed. The Secretary of State moved for an order of restitution from the plaintiffs, which the trial court denied on August 31, 1979. A motion for rehearing was denied on May 9, 1980. Intervening defendant-appellant appeals as of right. The statute relied upon by defendant, MCL 600.1475; MSA 27A.1475 provides: "In case any amount is collected on any judgment or decree, if such judgment or decree be afterward re versed the court shall award restitution of the amount so collected, with interest from the time of collection.” The present case is not squarely within the statute because an assignment was executed and delivered. If the assignment was nullified by the reversal of the judgment, appellant would be entitled to restitution. However, we conclude that the assignment was not nullified and affirm the trial court. An assignment of a judgment divests the assignor of all interests therein, 46 Am Jur 2d, Judgments, § 886, p 1025. An assignment is a transfer or setting over of property from one person or entity to another and, unless in some way qualified, transfers one’s whole interest. Allardyce v Dart, 291 Mich 642, 644; 289 NW 281 (1939), quoting 4 Am Jur, Assignments, § 2, p 229. The assignee is ordinarily subject to any setoif or counterclaim available to the obligor against the assignor, 6 Am Jur 2d, Assignments, § 102, p 283, Finn v Corbitt, 36 Mich 318 (1877). Generally, when a judgment is reversed or set aside, the party who has received the benefit must make restitution to the other party, 5 Am Jur 2d, Appeal and Error, § 997, p 424, Kalmbach v Foote, 79 Mich 236; 44 NW 603 (1890). It would thus appear that once a judgment is assigned, the assignor is completely disassociated from the rest except to the extent that his obligor may have rights against him which would then be assertable against the assignee. In Bennett v Sheriff of Wayne County, 91 Mich 143, 145; 51 NW 885 (1892), a judgment was assigned prior to reversal. The Court determined: "It appears that the assignment to Mr. Engle was of the claim of Williams against realtors, and was made before the reversal of the circuit court judgment in this Court. At the time of such reversal, therefore, Mr. Engle was the real plaintiff in the suit, and equitably the costs ought to be satisfied by him, and there is no hardship in setting the same off against the circuit court execution, even if he is a bona ñde assignee. He took the assignment of the judgment knowing that it was liable to be reversed, and stands in no better position than the assignor. Northam v Gordon, 23 Cal 255 [1863].” In the present case, appellant took the risk, although probably unforeseen, that the case was liable to be reversed upon a delayed appeal. In Humphreys County v Cashin, 136 Miss 476; 101 So 571 (1924), it was held that the assignee of a judgment was the owner of the cause of action upon which the judgment was based. As the "owner of the cause of action” the Secretary of State should have continued prosecution of the cause. In the present case, the assignment terminated plaintiffs’ interest in the case and since intervening defendant stood in no better position than the assignor, intervening defendant was subject to the delayed appeal and subsequent reversal. It is our opinion that delayed leave to appeal, sought by defendant Paul Baugh in 1977, was improperly granted. Prior to his motion, Baugh had defaulted on the plaintiffs’ original claim. Once that claim was paid by the Secretary of State in exchange for an assignment of the judgment, defendant Paul Baugh remained liable only for reimbursement to the Motor Vehicle Accident Claims Fund. Having assumed all responsibility for defending in this cause of action and payment of the eventual judgment, the proper party to appeal the judgment would have been the Secretary of State. Affirmed. The statute provides: "(1) Section 7 does not apply in the case of a judgment entered in an action in which the defendant did not enter an appearance, did not file an answer, or did not appear in person or by counsel at the trial, or judgment was entered upon the consent or with the agreement of the defendant, unless the secretary has been given notice in writing of the failure, consent or agreement and has been afforded an opportunity to take such action as he may deem advisable under subsection (2). "(2) Where the secretary is served with notice in writing under this section, he may enter an appearance within 30 days, file an answer, make payment into court, appear by counsel at the trial or take such other action as he may deem appropriate on behalf and in the name of the defendant, and thereupon, on behalf and in the name of the defendant, may conduct his defense, and may consent to judgment in such amount as he may deem proper in all the circumstances, and all acts done in accordance therewith shall be deemed to be the acts of the defendants. “(3) Where pleadings have been closed, the secretary, upon giving notice to the court and to all proper parties to the action that he intends to defend the action on behalf and in the name of the defendant, may reopen the pleadings upon praecipe. "(4) In any action to recover damages arising out of the use or operation of an uninsured motor vehicle any settlement made be tween the plaintiff and defendant shall not be binding upon the secretary or the fund unless the secretary consents thereto.” MCL 257.1107(1); MSA 9.2807(1) provides: "(1) Subject to section 8, where a person recovers in any court in this state a judgment for damages on account of injury to or the death of any person or property damage occasioned in this state by an uninsured motor vehicle owned or operated by the judgment debtor within this state, upon the determination of all proceedings, including appeals, he may make application, in the form prescribed by the secretary and the secretary shall pay the amount of the judgment or of the unsatisfied portion thereof, subject to the limitations provided in this act with respect to death or personal injury and the amount of the judgment or of the unsatisfied portion thereof, in excess of $200.00, with respect to property damage out of the fund.” MCL 257.1109; MSA 9.2809 also states: "The secretary shall not pay out of the fund any sum under section 7 until the judgment creditor assigns the judgment to him. The secretary may make settlement of a claim which is brought pursuant to section 13 and pay out of the fund any sum necessary to satisfy the settlement.”

Per Curiam. On May 7, 1980, summary judgment was entered in favor of plaintiff, Charter Township of Delta, against defendants, Dinolfo, et al., by the Eaton County Circuit Court. The summary judgment upheld the constitutionality of the township’s low density residential district zoning ordinance. Defendants appeal as of right. The facts are undisputed. The defendant couples are married, and each owns a home in an area zoned for low density residential use. Residing with each couple are their children and six unrelated adults. All adults are members of the Work of Christ Community, a nonprofit organization. The low density residential district is restricted to single family dwellings. "Family” is defined by § 2.2.0(28) or the ordinance which states: "Family: An individual or a group of two or more persons related by blood, marriage, or adoption, including foster children and servants, together with not more than one additional person not related by blood, marriage, or adoption, living together as a single housekeeping unit in a dwelling unit.” On November 9, 1978, defendants filed an application with the Township Zoning Board of Appeals requesting a variance from the ordinance’s definition of family. This request was denied on November 28, 1978. The Township Board of Trustees refused to overrule the zoning board. After defendants failed to comply with the zoning board’s order, plaintiff filed the present complaint on February 6, 1979. Defendants first argue that the township has no authority to define "family” within its zoning ordinances. This is without merit. A township’s limited powers are those expressly conferred upon it by the Michigan Constitution, by statute, or necessarily implied therefrom. Crain v Gibson, 73 Mich App 192, 200; 250 NW2d 792 (1977). The power to enact zoning ordinances is granted through the zoning enabling act, MCL 125.271; MSA 5.2963(1). Included in the zoning enabling act is a specific grant of power allowing the township to regulate the maximum number of families which may be housed in any building. Necessarily implicit in this grant is the township’s ability to define a family. Therefore, the township did not exceed its authority when it defined the term "family”. Defendants next contend that the ordinance violates MCL 125.297a; MSA 5.2963(27a), which states: "A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a township in the presence of a demonstrated need for that land use within either the township or surrounding area within the state, unless there is no location within the township where the use may be appropriately located, or the use is unlawful.” However, the township has not totally prohibited the establishment of defendants’ proposed land use. Defendants may establish their homes under § 8.10.3(2) and 8.10.5 of the ordinance. Lastly, defendants contend that the township zoning ordinance violates the Equal Protection and Due Process Clauses of the United States and Michigan Constitutions. This contention is also without merit. A similar challenge was brought against a similar zoning ordinance in the case of Village of Belle Terre v Boraas, 416 US 1; 94 S Ct 1536; 39 L Ed 2d 797 (1974). The United States Supreme Court found no violation of equal protection or due process. The zoning ordinance in Belle Terre defined "family” as: "The word 'family’ as used in the ordinance means, '[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family.’ ” Belle Terre, supra, 2. A group of unrelated adults challenged this definition. The United States Supreme Court held that the standard in reviewing a zoning ordinance is the "rational relationship” test. The Supreme Court stated: "We deal with economic and social legislation where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be 'reasonable, not arbitrary’ (quoting Royster Guano Co v Virginia, 253 US 412, 415 [40 S Ct 560; 64 L Ed 989]) and bears 'a rational relationship to a [permissible] state objective.’ Reed v Reed, 404 US 71, 76 [92 S Ct 251; 30 L Ed 2d 225].” Belle Terre, supra, 8. The Supreme Court further held that the village zoned the area in which defendants’ homes were located as single family dwellings to provide an area conducive to family life. The Supreme Court specifically stated that this was a legitimate guideline toward a permissible goal. Belle Terre, supra, 9. We adopt the Untied States Supreme Court’s reasoning as our own. Delta Township’s zoning ordinances violate neither equal protection nor due process. Defendants’ attempt to come within the holding of Moore v East Cleveland, 431 US 494; 97 S Ct 1932; 52 L Ed 2d 531 (1977), is unpersuasive. The Moore factual situation is easily distinguishable from that of the present case. The East Cleveland zoning ordinance attempted to limit the definition of "family” to essentially the nuclear family, i.e., the parents and their children. The United States Supreme Court held that the definition of "family” could not be so limited so as to exclude grandchildren living with a grandparent. The Moore opinion held that the constitution’s protection of the sanctity of the family was deeply rooted in the nation’s history and tradition and that such tradition was not limited to respect for the bonds uniting the members of the nuclear family but extended as well to the sharing of their household with uncles, aunts, cousins, and especially grandparents. Moore, supra, 504-505. The present defendants do not come within the Moore definition of "family” and, as such, cannot claim the present zoning ordinance, which comports with Moore> to be unconstitutional. Affirmed, no costs, a public question being involved.

Per Curiam. This decedent’s estate was closed on February 10, 1977. On October 9, 1979, appellant filed a petition to reopen the estate and to have a successor fiduciary appointed for the purpose of filing a claim. On May 12, 1980, the probate court entered an order denying the petition to reopen the estate and appoint a fiduciary. Appellant then timely filed a claim of appeal with this Court pursuant to MCL 600.861; MSA 27A.861 which provides, inter alia, that a party to a proceeding in the probate court may appeal as a matter of right to the Court of Appeals from a "final order affecting the rights or interests of any interested person in an estate or trust”. Recognizing that a substantial question existed as to the jurisdiction of this Court to entertain an appeal from the probate court order, we ordered the appellant to file a brief on this question, with the opportunity for the appellee to respond. Appellant has failed to file the requested brief. Since the order in question clearly was entered in a decedent’s estate, the issue is whether or not the order denying the petition to reopen the estate and appoint a fiduciary was a "final” order and there fore appealable to this Court rather than the circuit court. Since there is no statute or rule which defines the term "final” as used in MCL 600.861; MSA 27A.861, the determination of which probate court orders are "final” and which are not, for purposes of determining the appellate jurisdiction of the Court of Appeals, has to be made on a case-by-case basis. In re Swanson Estate, 98 Mich App 347; 296 NW2d 256 (1980). We do not consider the order of the Oakland County Probate Court denying the petition to reopen the estate and appoint a fiduciary, which was filed nearly two and one-half years after the estate was closed, to be a "final order”, but rather it is a postjudgment order which is appealable by leave only. It is equivalent to a circuit court order denying a motion for new trial or rehearing filed two and one-half years after final judgment. The appeal is therefore dismissed without prejudice to the filing of a motion for leave to appeal in the circuit court for the County of Oakland, pursuant to GCR 1963, 703. In the Matter of Antieau, 98 Mich App 341; 296 NW2d 254 (1980). The appeal is dismissed. It is ordered that the time for filing a proper motion for leave to appeal in the circuit court shall commence with the release date of this opinion.

D. F. Walsh, J. This appeal involves two cases which have been consolidated. On April 19, 1979, Stablex Corporation moved to compel the Township of Groveland (hereinafter township) to comply with a consent judgment that was entered on December 20, 1978. Stablex Corporation also sought to enjoin the township from interfering with its use of the property described in the consent judgment in accordance with the submitted reclamation and site plan. After numerous proceedings between November 19, 1979, and February 12, 1980, the circuit court rendered an opinion in favor of Stablex Corporation on April 1, 1980. Subsequently, on November 3, 1980, Stablex Corporation filed an action for a declaratory judgment and a writ of mandamus, with the Director of the Department of Natural Resources as the named defendant. On November 5, 1980, the circuit court declared that Stablex Corporation was entitled to all necessary construction permits and licenses for a hazardous waste disposal facility under MCL 299.501 et seq.; MSA 13.30(1) et seq. The court also permanently enjoined the Director from asserting that any additional construction permits or licenses were required of Stablex Corporation. The Township of Groveland moved to intervene, but the circuit court denied the motion. In an order dated November 18, 1980, this Court peremptorily reversed the circuit court’s order denying the township’s motion to intervene. The township now appeals both circuit court decisions. In October, 1975, the township filed a complaint against Donald Jennings and Stuart Jennings. The suit arose from the Jennings’ operation of a gravel mining excavation on four parcels of land (approximately 186 acres) in alleged violation of the township’s zoning ordinances. The parties participated in extensive negotiations which culminated in a consent judgment entered on December 20, 1978, and applicable to all successors and assigns. The consent judgment specifically stated that the mining operation is "subject to such reasonable regulations as the [p]laintiff [township] * * * may impose by valid ordinances, not inconsistent with the terms of this Judgment or not in contravention hereof * * It also provided that the requirements for reclamation, as set forth in Groveland Township Ordinance No. 31, shall apply to the property. The judgment goes on to state that "[i]n the event filling of the mined areas is necessary during rehabilitation, said fill material shall be essentially non-organic in nature * * The consent judgment also made several references to the applicable zoning: district E-l, Extractive. Approximately one year prior to the entry of this consent judgment, the original zoning of M-2 Heavy Industrial was changed to E-l Extractive on three parcels and R-2 Residential on one parcel. In June, 1978, the Jenningses granted Stablex Corporation, a foreign corporation wholly owned by three British firms, an option to purchase the four parcels of real estate for $1,800,000. In February, 1979, Stablex introduced a plan for reclaiming the mined property by (1) processing hazardous waste in a treatment plant to be constructed on the site and (2) utilizing the finished product as a fill for the excavated cavities on the property. Stablex Corporation holds a patent on a relatively new technological process that produces a material trademarked as Stablex. The crystallization process, developed by English chemists in 1969, transforms toxic and noxious industrial wastes into a chemically harmless substance, resembling inert synthetic rock. In its reclamation plan, Stablex proposed to construct a processing plant on the Jenningses’ property and invest $10,-000,000 in processing equipment. At full capacity, the plant would process 500,000 tons of industrial waste per year. The land was to be restored to within three feet of the original surface. After filling the remainder with cover material, Stablex intended to farm Christmas trees on the resulting land. Stablex planned to complete the mining within 15 years and the reclamation within 25 years. The Township Planning Commission subsequently rejected the reclamation plan and Stablex then filed suit. In granting Stablex’s motion to compel compliance with the consent judgment, the circuit court held that the zoning of the three parcels of property did not preclude the reclamation project. The court sanctioned the plan submitted by Stablex in the following manner: "[I]t is clear that these areas while zoned extractive, are required to be filled and reclaimed with a non-organic material. As the Consent Judgment controls, the filling of the mined areas cannot be prohibited by a zoning ordinance which is in contravention of that Judgment. The zoning of these parcels is therefore not a bar to the Stablex Reclamation Plan. Further, processing facilities incidental to the process are expressly permitted according to the Zoning Ordinance. " 'Ordinance 31 * * * is applicable as specifically so stated in the Consent Judgment, paragraph K. Section 7.1 of that Ordinance states: " 'All excavation shall be made either to a water producing depth * * * or shall be graded or backfilled with noxious-free, non-inflammable, and non-combustible materials * * *. " 'Paragraph 12 of the Consent Judgment provides: " 'In the event filling of the mined areas is necessary during rehabilitation, said fill material shall be non-organic in nature * * *.’ "The evidence, as stated above, supports the conclusion that the Stablex material is noxious-free, non-inflammable, non-combustible and inorganic in nature. Stablex thus qualifies as an acceptable fill material for reclamation as set forth in the Consent Judgment and Ordinance 31. The Township’s challenge to the Reclamation Plan on this basis therefore is without reasonable basis.” The court declared Stablex’s reclamation and site plan to be in compliance with the consent judgment and enjoined the township from interfering with Stablex’s operations on the property. In its decision on November 5, 1980, the court subsequently declared that Stablex Corporation was entitled to all necessary construction permits and licenses for the hazardous waste disposal facility. Groveland Township raises numerous issues on appeal, only one of which merits extensive discussion since it is dispositive of the appeal. The township argues that the court erred in ruling that the provisions of the zoning ordinance do not preclude the proposed reclamation project. We agree and reverse. In equity cases, we review the record de novo with due deference given to the findings of the circuit court. This Court is required to sustain the findings of the circuit court unless it is convinced that had it heard the evidence in the first instance it would have been compelled to rule contrary to the ruling actually made. Schwartz v City of Flint, 92 Mich App 495, 539-540; 285 NW2d 344 (1979), Emerson v Arnold (After Remand), 92 Mich App 345, 357-358; 285 NW2d 45 (1979). The reclamation plan submitted by Stablex contained two interrelated components: (1) construction and operation of a hazardous industrial waste processing plant; and (2) filling the excavated property with the product processed at that plant. In approving the Stablex plan, the circuit court ruled that, since the zoning ordinance required that the property be reclaimed, the ordinance itself could not serve as a basis for prohibiting that the land be filled with the Stablex product, an essentially inorganic substance that met the fill material specifications of both the consent judgment and the zoning ordinance. The court’s ruling is correct insofar as it holds that Stablex cannot be prevented from rehabilitating the land with inorganic fill material. Both the ordinance and the consent judgment generally provide for this type of land fill. However, the consent judgment also mandates that Stablex comply with all provisions of the township zoning ordinance, including the use restrictions of an E-l district. Therefore, in order to be valid under the consent judgment,, the Stablex plan with regard to the construction and operation of a hazardous waste processing plant must fit within one of the principal uses outlined by the ordinance or amount to an accessory use within the meaning of the ordinance. The township zoning ordinance provides for the following principal uses: "1. The excavation, mining, stockpiling or removal of sand and/or gravel deposits. "2. Processing plants in connection with the washing, grading or other similar processing of excavated materials. "3. Stockpiles of sand and/or gravel as the produce of an excavation operation. "4. All of the above listed permitted uses shall be subject to the provisions of Ordinance No. 31, known as the Groveland Township Mineral Mining Control Ordinance and such uses may only be established in compliance with the provisions of Ordinance No. 31. "5. Plants for manufacturing concrete, commonly known as 'ready-mix plants.’ ” Groveland Township Zoning Ordinance, § 12.01al-5. (Emphasis added.) Upon reviewing the record, we find no support for the assertion that the construction and operation of a hazardous industrial waste processing plant fits within one of the above categories of principal uses. Under the ordinance, processing plants are permitted only if the processing involves washing or grading or something similar thereto. Also, the ingredients are specifically limited to excavated materials. The Stablex "processing” plant fails to meet both conditions since it involves the chemical bonding of nonexcavated materials. Likewise, the hazardous waste plant cannot be considered a "ready-mix plant”. Although the Stablex product, an inert rock-like material, may be similar in some respects to concrete, it is not the same substance. The ingredients and the chemical reactions involved in the process in no way resemble a concrete manufacturing plant. Having failed to meet the ordinance’s requirements for a principal use, the Stablex proposal can be upheld only if the processing plant is considered to be an "accessory use”. The township zoning ordinance provides for accessory uses as follows: "Accessory buildings, structures and uses, customarily incidental to any of the above principal uses, when located on the same property and not involving any business, profession, trade or occupation other than provided for in the E-l, Extractive District above.” Groveland Township Zoning Ordinance, § 12.02a. An "accessory use” is generally defined as a use "which is clearly incidental to and customarily found in connection with and located on the same zoning lot as is the principal use to which it is related”. 2 Rathkopf, The Law of Zoning and Planning (4th ed), § 23.01, p 23-2. See 82 Am Jur 2d, Zoning and Planning, § 169, pp 672-675 (1976). The general nature of an accessory use hinges on the meaning of the definitional terms "customarily incidental”. In Mola v Reiley, 100 NJ Super 343; 241 A2d 861, 864 (1968), the Court discussed the terms as follows: "That the nature of an accessory use is something less than a primary permitted use is demonstrated by a characterization of accessory uses as 'dependent on’ or 'pertaining to.’ Town of Needham v Winslow Nurseries, 330 Mass 95; 111 NE2d 453, 457; 40 ALR2d 1450 (Sup Jud Ct 1953). As noted above, the New Jersey definition ascribes incidence. 'Incident’ is defined as 'something dependent upon, appertaining or subordinate to, or accompanying something else of greater or principal importance; * * * something arising or resulting from something else of greater or principal importance.’ 1 Webster’s Third New International Dictionary (1964), p 1142. Chief Justice Weintraub, then sitting as a trial judge in the Law Division, attributed subordination to the meaning of incidental use thusly: " '* * * A use is thus incidental so long as the main use of the dwelling remains residential and the occupa tional activity is factually subordinate. * * *.’ Jantausch v Borough of Verona, 41 NJ Super 89, 98; 124 A2d 14, 19 (Law Div, 1956). "Rathkopf, in a chapter devoted to accessory uses, comments: " '* * * These quasi-business uses are permissible as long as the type and magnitude of the business uses are such as to render them incidental to the primary residential use. When, however, they attain such magnitude as no longer to be incidental, they lose their status as an accessory use. In other words, the tail cannot wag the dog, and the work cannot be conducted in such a fashion that it is of equal importance to the use of the building as a residence.’ 1 Rathkopf, The Law of Zoning and Planning, (3d ed, 1960), p 23-7. "A primary use must be and must continue to be dominant to an accessory use. State v Mair, supra; see Keller v Town of Westfield, 39 NJ Super 430; 121 A2d 419 (App Div, 1956).” Accord, Gratton v Pellegrino, 115 NH 619; 348 A2d 349 (1975) (an accessory use is a subordinate use of the property occasioned by the principal use, and is not the main use of the property), Town of Harvard v Maxant, 360 Mass 432; 275 NE2d 347 (1971), Schwartz v Chave, 53 Misc 2d 1007; 281 NYS2d 133 (Sup Ct, 1967) (an accessory use must not be the dominant use). In City of Muskegon Heights v Wilson, 363 Mich 263, 267; 109 NW2d 768 (1961), the Supreme Court stated that the business accessory use must be "clearly incidental” to the residential use of property in a residential district. In Arundel Supply Corp v Cason, 265 Md 371; 289 A2d 585 (1972), the court held that the washing, screening and batching of materials brought from other locations was not an accessory use of a gravel pit whose own supply of sand and gravel had been exhausted. In the instant case, we must determine whether the construction and operation of a hazardous waste processing plant is "customarily incidental” to the principal uses of mining and reclamation. The question becomes one of whether Stablex is processing industrial waste so as to reclaim the land or whether Stablex is reclaiming the land in order to be allowed to operate a hazardous waste disposal plant. In our judgment, the evidence in the record clearly supports the latter conclusion that the reclamation of the land is merely incidental to the primary purpose of hazardous waste disposal. Stablex Corporation has exercised its option to purchase the property for $1,800,000 and intends to invest $10,000,000 for the processing equipment. At full capacity, Stablex proposes to take in approximately 500,000 tons of hazardous waste per year. The land would be reclaimed over an estimated period of 25 years. The magnitude of the size and operation of this project leads to the conclusion that the dominant purpose of Stablex’s proposal was the disposal of hazardous industrial wastes for profit. Any reclamation of the land was purely incidental to this main objective and has been dwarfed in comparison to Stablex’s proposed commercial enterprise. The investment of millions of dollars cannot be considered as subordinate to the reclaiming of the land. The testimony demonstrates that Stablex is not investing $10,000,000 for processing equipment and implementing a 25-year reclamation project with the intent of recouping its investment by operating a Christmas tree farm. Since the record establishes that the Stablex processing plant is not an accessory use to the mining operation and we have previously stated that this component of the Stablex reclamation plan is not a valid principal use under the zoning ordinance, we conclude that the court erred in ruling that the zoning ordinance did not bar Stablex’s project. The township’s appeal of the declaratory judgment and injunction entered on November 5, 1980, has been rendered moot by the passage of 1980 PA 301. The decision of the circuit court is reversed and the injunction is dissolved. The validity of this residential rezoning has been the subject of a separate lawsuit and will not be discussed in the instant case.

M. F. Cavanagh, J. Defendant was convicted by a jury of two counts of armed robbery, MCL 750.529; MSA 28.797, one count of criminal sexual conduct in the first degree, MCL 750.520(b); MSA 28.788(2), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to a term of from 8 to 30 years in prison on both armed robberies, from 8 to 30 years on the criminal sexual conduct conviction, and to an additional two years on the felony-firearm conviction. Defendant was given credit for 27 days incarceration. Defendant appeals as of right. The charges against defendant arose from an incident which occurred at approximately 2 a.m. on June 9, 1979. The female complainant and her boyfriend were lying on a hill near the townhouse in which she lived located near the John C. Lodge freeway in the City of Detroit. The man and woman noticed a man lying near the bottom of the hill who began walking toward them. The woman later identified that man as the defendant. The defendant pulled a gun and ordered the woman and man to lie down. He then took three rings and two chains from the woman and a watch from the man. The defendant told the woman to keep her eyes closed or he would shoot her; the woman kept opening and closing her eyes. The defendant then raped the woman, told the man and woman not to move, and then walked down the hill toward the townhouses. The man and woman gave descriptions of the assailant to the police. He was described as being about 5 feet 8 or 9 inches tall, with a small mustache, light brown skin and as wearing a baseball cap turned backwards. Later on the day of June 9, the male victim saw the defendant in the area of the townhouse. He saw the defendant again the next day. The police were called, and the defendant was identified as the man who committed the robbery and rape. Two lineups were held prior to trial. The female victim did not see defendant in the first lineup; he was not present in that lineup. She later identified the defendant in the second lineup. A Gilbert-Wade hearing was conducted to determine whether the lineup procedures were overly suggestive. The trial court determined that the lineup was not impermissibly suggestive and conducive to irreparable mistaken identification so as to deny the defendant due process of law, Stovall v Denno, 388 US 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967). Defendant was represented by counsel at the lineup. We are not persuaded that defendant met the burden of proving that the lineup was impermissibly suggestive. People v Rivera, 61 Mich App 427, 433; 232 NW2d 727 (1975), People v Horton, 98 Mich App 62, 67-68; 296 NW2d 184 (1980). The defendant contends that his convictions of criminal sexual conduct in the perpetration of a felony and armed robbery violate his right to be free of being placed twice in jeopardy. The courts of this state have employed two tests in considering whether the guarantee against double jeopardy has been violated because of "double punishment”. The first test, commonly known as the Blockburger test, concentrates on the statutory elements of each crime. If, legally, each statutory provision requires proof of a fact which the other provision does not, there is no double jeopardy. Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 2d 306 (1932), Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979). The second test looks to the factual proofs involved in the particular case. People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977). Under the second test, if the facts developed during trial indicate that the violation of one provision is not severable from a violation of the second provision, then the former blends into the latter so as to constitute one single wrongful act. This second test has been modified by the Supreme Court to provide that if the Legislature has manifested an intent to make the two offenses separate and distinct and has provided separate penalties there is no violation of double jeopardy. Wayne County Prosecutor, supra. The challenged criminal sexual conduct statute states: "A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: "(c) Sexual penetration occurs under circumstances involving the commission of any other felony. "(2) Criminal sexual conduct in the first degree is a felony punishable by imprisonment in the state prison for life or for any term of years.” MCL 750.520b; MSA 28.788(2). The statute under which defendant was convicted of armed robbery provides: "Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years.” MCL 750.529; MSA 28.797. Under the rationale of Blockburger as applied in Wayne County Prosecutor, we find that in the instant action the provision challenged is constitutional. To convict a defendant of criminal sexual conduct, the prosecution is required to prove sexual penetration, as defined by the statute, with another person, under circumstances involving the commission of any other felony. None of these elements legally are required to find an armed robbery. To convict a defendant of armed robbery, the prosecution must prove an assault on another, a taking of property with an intent to perma nently deprive its owner of the property while the defendant is armed with a dangerous weapon or an article used or fashioned in a manner so as to lead the person so assaulted to believe that it is a dangerous weapon. None of those elements legally are necessary to convict a defendant of first-degree criminal sexual conduct. Under Wayne County Prosecutor, supra, the fact that in the instant action the armed robbery is the underlying felony would not render the statutory provision unconstitutional. Under the test enunciated in Stewart and Martin, the challenged statutory provision fails to pass constitutional muster unless, as the Supreme Court found in Wayne County Prosecutor, we are able to find a clear legislative intent to authorize separate convictions and cumulative punishments based upon the one occurrence. If the statute evinces this clear legislative intent, Stewart and Martin are inapplicable and separate convictions are constitutional. Wayne County Prosecutor, supra, 402. We decline to follow this Court’s decision in People v Robideau, 94 Mich App 663; 289 NW2d 846 (1980). Instead, we reaffirm the view expressed in People v Peete, 102 Mich App 34, 41-43; 301 NW2d 53 (1980), where this Court stated: "We note that this case involves an application of the traditional double jeopardy restraint on courts and prosecutors which prevents imposing double punishment and conviction for a single act. This case does not involve a challenge to a clear legislative intent to doubly punish for a single criminal act. See People v Jankowski, 408 Mich 79, 85-86; 289 NW2d 674 (1980), Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), reh den 406 Mich 1127 (1979). "In this opinion, we disagree with the conclusions of this Court in People v Robideau, 94 Mich App 663; 289 NW2d 846 (1980), and People v Ferrell, 99 Mich App 609; 299 NW2d 366 (1980), that the criminal sexual conduct statute expresses a clear intent to authorize multiple convictions. "As there is no apparent legislative intent to provide for cumulative convictions for a single criminal act, it is necessary to determine whether, on the facts of the case at issue, the lesser offense is proved by the same evidence used to prove the greater, Jankowski, supra, 86, 91, People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Martin, 398 Mich 303; 247 NW2d 303 (1976). "Applying this analysis to the criminal sexual conduct statute, we conclude that conviction for an underlying felony is impermissible where that felony is evidentially used as one element of first-degree criminal sexual conduct.” We agree. The Supreme Court in Wayne County Prosecutor focused on the language of the felony-firearm statute in noting the Legislature’s intent to make the carrying of a wéapon during the commission of a felony a separate crime from the underlying felony. The Court compared the language of the felony-firearm statute to that of the habitual offender statutes, MCL 769.10; MSA 28.1082, MCL 769.11; MSA 28.1083, MCL 769.12; MSA 28.1084, and the armed robbery statute, MCL 750.529; MSA 28.797, and found: "The [felony-firearm] statute decrees that any person carrying or possessing a firearm during a felony or attempted felony ’is guilty of a felony’ and shall be imprisoned for two years. This two-year sentence must be imposed ’in addition to’ the sentence for the felony or attempted felony and must be served ’consecutively’ to and 'preceding’ the sentence for that crime.” [Emphasis in original.] "This language is markedly different from the language used by the Legislature in those statutes which are merely sentence enhancement statutes.” Wayne County Prosecutor, supra, 389. The relevant portion of the criminal sexual conduct statute states: "A person is guilty of criminal sexual conduct in the • first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: "(c) Sexual penetration occurs under curcumstances involving the commission of any other felony.” "(2) Criminal sexual conduct in the first degree is a felony punishable by imprisonment in the state prison for life or for any term of years.” MCL 750.520b; MSA 28.788(2). There is no language in the criminal sexual conduct statute similar to that relied upon by the Wayne County Prosecutor Court in its analysis of the felony-firearm statute which would lead this Court to find that the Legislature evidenced a clear intent to authorize multiple convictions and cumulative punishments for first-degree criminal sexual conduct and the underlying felony. Therefore, defendant’s conviction of the underlying crime of armed robbery as to the female complainant is vacated. Defendant’s next issue which merits discussion is his assertion that the trial court’s reference to the testimony of an alibi witness was prejudicial to the defendant. Defendant presented a witness who testified that the defendant was with her at the time the incident occurred. On cross-examination, that witness was asked: "Q. Would you tell me what time he came on the night prior? "A. Friday night? ”Q. The night before, yeah, Thursday night. ”[Counsel for defendant]: Your Honor, I’m going to object to that. I don’t see the relevance of this. "The Court: That’s over-ruled. He’s testing her memory, obviously, that’s the relevancy. Her credibility is much in question.” On appeal, defendant objects to the court’s statement that the witness’s credibility was in question. Defense counsel failed to object to the court’s statement at trial. Generally, this court will not review allegations of error based on comments not objected to at trial absent manifest and serious error. People v Therrien, 97 Mich App 633; 296 NW2d 8 (1979), People v Stinson, 88 Mich App 672; 278 NW2d 715 (1979). Defendant was not denied a fair and impartial trial because of this remark by the trial court. Furthermore, the trial court later instructed the jury to disregard any comments by the court which might indicate an opinion as to the guilt or innocence of the accused. Finally, defendant claims error in the trial court’s indication to the jury on voir dire that an alibi defense would be presented. Defendant asserts that the court’s comment constituted a violation of his right to remain silent. We distinguish the instant case from both People v Hunter, 95 Mich App 734; 291 NW2d 186 (1980), and People v Shannon, 88 Mich App 138; 276 NW2d 546 (1979), wherein the defendants, though having filed a notice of alibi as required by MCL 768.20; MSA 28.1043, did not present an alibi defense at trial. This Court in Hunter and Shannon stated that it was improper for the prosecutor (Shannon) or trial judge (Hunter) to comment on the defendant’s failure to present the alibi defense after having filed the notice of such. We agree that such comments should not be encouraged. In situations where the jury has been apprised of the. defendant’s filing of the notice of alibi by the court or prosecutor where the defendant does not present an alibi defense, the comment impermissibly shifts the burden of proof to the defendant. Here, however, unlike both Hunter and Shannon, the defendant did testify and did present an alibi defense. Therefore, even though we would hope to discourage comment on a defendant’s notice of alibi or anticipated alibi defense prior to the introduction of that defense, we find no prejudice to the defendant here. We find the defendant’s remaining contentions of error to be without merit. Based on the foregoing, defendant’s convictions of first-degree criminal sexual conduct, felony-firearm, and one count of armed robbery are affirmed. Defendant’s conviction on one count of armed robbery is vacated. Affirmed in part, reversed in part. United. States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), Gilbert v California, 388 US 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967). The author of this opinion is aware of his participation in the decision in People v Robideau, 94 Mich App 663; 289 NW2d 846 (1980), where it was held that the Legislature did express an intent in the criminal sexual conduct statute to "authorize multiple convictions and cumulative punishments,” comparing that conclusion with the Court’s finding in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), reh den 406 Mich 1127 (1979), of such legislative intent in the felony-firearm statute. After a thorough examination of this issue, the author of this opinion is convinced that today’s decision finding no such legislative intent in the criminal sexual conduct statute is correct. Therefore, the decision in the instant case expressly departs from the decision in Robideau.

Per Curiam. The judgment of divorce entered in 1969 between the parties hereto awarded defendant custody of the two minor children and required plaintiff to pay child support in the amount of "$20.00 per week per child * * * until said children have attained the age of 18 years, or until the further order of the court”. As neither child would graduate from high school before reaching the age of 18, defendant filed a motion to extend support payments "until said children have attained the age of 18 years or graduated from high school, whichever event shall later occur”. Following the trial court’s denial of the motion to extend support, defendant appeals by right. The instant factual situation is almost identical to that in McNames v McNames, 93 Mich App 477; 286 NW2d 892 (1979), relied upon by the trial court as authority for denial of the motion. McNames, supra, held that the Age of Majority Act, MCL 722.51 et seq.; MSA 25.244(51) et seq., negates any obligation for child support beyond age 18 absent any reservation in the original judgment of divorce of the right to extend support in the future. The present case is clearly analogous since there was neither a prior agreement nor any reservation in the original divorce judgment for future support beyond age 18. Furthermore, as in McNames, the instant motion was filed well beyond the effective date of the Age of Majority Act. Thus, the savings clause of the Age of Majority Act, MCL 722.54; MSA 25.244(54), is not applicable, and under Me- Names, the trial court did not err when it denied defendant’s motion to extend support payments until the children graduate from high school. In Johnson v Johnson, 346 Mich 418, 426; 78 NW2d 216 (1956), the Supreme Court held that a circuit court has authority to grant support only until the children attain the age of majority. Similarly, in Rybinski v Rybinski, 333 Mich 592; 53 NW2d 386 (1952), the Court held that a trial court cannot order support for a child of the parties after the child had reached her majority. Defendant argues that the Family Support Act, MCL 552.452; MSA 25.222(2), is a legislative response to the holding in Johnson. The statute, which took effect in 1967 and was amended in 1970, provides in pertinent part: "The [support] order shall state in separate paragraphs the amount of support for the wife until the further order of the court, and the amount of support for each child until each child reaches the age of 18 years or until the further order of the court. In unusual circumstances the court may order support for such child after he reaches the age of 18 years and until he reaches the age of 21 years, or until the further order of the court.” Defendant contends that the statutory language, "or until the further order of the court”, expressly authorizes the circuit courts to order child support payments even after the children attain the age of majority. It does not appear to us that the Family Support Act is even applicable to proceedings to modify a judgment of divorce. The act appears to be applicable only where the marriage is still legally intact. Section 1 of the act, MCL 552.451; MSA 25.222(1), provides that "[n]o complaint shall be filed nor shall any summons issue if divorce or separate maintenance proceedings are then pending between the petitioner and her husband”. Since the parties in the present case were divorced in December, 1969, MCL 552.17a; MSA 25.97(1) is the child support statute applicable to this case. We thus find defendant’s reliance on the Family Support Act misplaced because the statute is inapposite. This Court’s holding in McNames, supra, is applicable here and we therefore affirm the trial court. Affirmed.

On Rehearing. Clark, J. The opinion in this ease appears in 241 Mich. 413. This court, after rule time, and on its own motion, ordered a rehearing, and invited Hon. Henry C. Walters of the Detroit bar to brief and to argue orally as friend' of the court the question presented. He filed an excellent brief, and made a well-considered argument. The question is on the construction of Act No. 264, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9100 [254]), quoting: “No policy of fire insurance shall hereafter be declared void by the insurer for the breach of any condition of the policy if the insurer has not been injured by such breach, or where a loss has not occurred during such breach, and by reason of such breach of condition.” The history of this statute is set forth in Lagden v. Insurance Co., 188 Mich. 689. It was first enacted in 1897. In its present and amended form it was enacted in 1911, and continued until the legislative session of 1917, when it was omitted, inadvertently it is said, from Act No. 256, Pub. Acts 1917, known as the insurance code. It was re-enacted in 1921 in the exact language of the act of 1911. The statute has two features: First, no policy of fire insurance shall be declared void by the insurer for breach of any condition of the policy if the insurer has not been injured by the breach. Second, no policy of fire insurance shall be declared void by the insurer for the breach of any condition of the policy where a loss has not occurred during such breach and by reason of such breach of condition. The statute does not affect the contract and statutory right of the insurer to cancel before loss. 'It does relate to denial of liability or defense after loss. The second feature of the statute, above stated, is certainly to the effect that, after loss, the insurer may not deny liability and defend “if the fire was not caused by a breach of condition even though the breach was existing at the time of the fire” (quoting from the Lagden Case). This part of the statute is that to deny liability or to defend on a loss there must be a causal relation between the breach and the loss. That the legislature so intended is plainly indicated by the language of that part of the statute and by its changing by the act of 1911 the word “or” to “and,” italicized above. The difficulty is not of the proper interpretation of this feature of the statute, but of the first feature above stated. ' That feature, stated affirmatively, is that the insurer may deny liability and defend for the breach of any condition of the policy by showing the breach and that the insurer has been injured thereby. There are no conditions in the standard form of fire insurance policy the breach of which does not injure the insurer. It is not to be considered that any condition of such policy, prescribed by the legislature and contracted by the parties, is so immaterial that a breach is without injury. It cannot be doubted that a breach of conditions against increase in hazard such as keeping explosives, gas, etc., on the premises, or against vacancy is an invasion of a right of the insurer and is. an injury. It is equally the rule that a breach which merely increases the moral hazard, such as a breach of conditions against mortgage, change in interest, or other insurance, does the insurer an injury. A good statement in this regard appears in the dissenting opinion of Mr. Justice Ostrander in the Lagden Case: “It cannot be presumed that a breach of a condition which increases the moral hazard does the insurer no injury. Quite the contrary. Courts have uniformly avoided the policy upon breach of such conditions, upon the ground that an essential and material change of the contract was thus effected and the insurer prejudiced.” Breach therefore results in injury. If the first feature of the statute be given effect according to its words, insurers may defend on any breach of condition; their situation in that regard is precisely as if the statute had not been enacted, and the statute itself is perfectly meaningless. ■ The effect of the holding of the majority opinion in the Lagden Case is to wipe out the first feature of the statute and to give full effect to the second, thus saving part of the statute. This is shown by the following quotation from the majority opinion: ‘ ‘ The plaintiff, by introducing the policy and showing his loss, makes a prima facie case, which entitles him to recover in the absence of proof of a breach of the contract. The burden is then upon the defendant to show that the policy has been avoided by a breach of its conditions. In order to make that defense effective, it is necessary to further show some connection between the loss and the breach of the condition, and this burden would seem to properly rest upon the defendant.” Therefore, that breach be available in defense there must be a causal relation between the breach and the loss. This holding was followed in the case at bar. See cases cited in main opinion. It is suggested that we now overrule those cases and construe the word “injured” as used in the statute to mean “damaged” and further construe damages to mean measurable, financial loss. We are not moved so to do, especially in view of the fact that the legislature in 1921 re-enacted the statute in the exact words of the statute of 1911 having before it the construction by the court in the Lagden Case. It is pointed out that the rule of such case would work great injustice in some instances. One is where in consideration of reduced rate a condition is put into the policy that insured is to maintain in good order a sprinlding system. A fire, perhaps otherwise' easy to control, becomes a conflagration because of breach of the condition for sprinkler system. The breach was not the primary cause of the fire, but it was a contributing cause. Another instance, set up in like manner, is a breach' of the condition against keeping naphtha, benzine, and like substances on the premises. We cannot decide the matter of contributing cause until it is before the court. Counsel urge, too, that this legislation is novel, radical, and unwise, all of which is for the legislature, not the courts. If the construction of the statute in the Lagden Case and in later cases is at variance with legislative purpose, it would be helpful to the courts and to our people interested in fire insurance, if the legislature, now in session, would give clear expression of its intention in this regard. We adhere to our former opinion. Affirmed. North, C. J., and Fead, Fellows, Wiest, McDonald, Potter, and Sharpe, JJ., concurred.

Bird, J. Plaintiff is a lumber dealer and has its office in the city of Grand Rapids. On November 4, 1918, it delivered to the defendant Manistee & Northeastern Railroad Company, at Interlochen, two cars of maple lumber consigned to the Merrimac Wood Heel Company at Haverhill, Massachusetts. The cars were to go via Whitehall and Big Rapids and be stopped at Big Rapids for kiln drying. Bills of lading were issued to the shipper and waybills to accompany the cars to their destination were prepared, which showed across the face of each the following instruction: “Stop this ear at A. L. Dennis Salt & Lumber Company, Big Rapids, Michigan, for lain drying.” The cars were moved under these instructions by the Manistee & Northeastern Railroad Company from Interlochen to Kaleva, its junction point with the Pere Marquette Railway, and delivered to it in good order. The waybills were turned over to the Manistee & Northeastern agent at Kaleva by the conductor and by him delivered to the agent of the Pere Marquette, and the agent of the Pere Marquette delivered them to the Pere Marquette conductor. Instead of continuing south on its line to Whitehall the Pere Marquette stopped the cars at Baldwin, and from there they went east to Saginaw, and did not go through Big -Rapids at all. The cars went through on the other lines of railway without incident to their destination. The lumber was kiln dried after it reached its destination at a considerable increase in expense. Plaintiff sued defendants to recover its damage by reason of the failure to stop the cars at Big Rapids and because of their failure to notify the consignee that the lumber had not been kiln dried. The case was tried before the trial court without the aid of a jury, and damages were assessed in favor of plaintiff and against both defendants in the sum of $2,173.13, Both defendants assign error. The Manistee & Northeastern Company insist that the proceedings should have been dismissed against it, as it delivered the cars in good order to the Pere Marquette with full instructions indorsed on the waybills. The trial court was of the opinion that the Pere Marquette was responsible for the failure to stop the cars at Big Rapids, but that the manner of billing them contributed to the negligence of the Pere Marquette and, therefore, held both roads responsible for the error. This view of the trial court was induced by the testimony of Mr. Thomas W. Avis,, division freight agent of the Pere Marquette Railway. He suggested in his testimony that the cars, were not properly billed by the Manistee & Northeastern agent; that they should have been, billed direct to Big Rapids, with no notation as to Haverhill, Massachusetts. The freight charges from Interlochen to Big Rapids should then have been paid, and the receipt deposited with the agent at Big Rapids. After the lumber was dried and ready to be forwarded, the agent at Big Rapids would have billed them from point of origin to destination at the through rate* The trial court concluded if this were the way prescribed by the tariffs on file, and that the Manistee & Northeastern Railroad did not conform thereto, it was in some degree responsible for the error. The testimony shows that the through rate and stop-over privilege at Big Rapids was accorded to shippers, and it was a practice that the agents and train operatives were familiar with. The notation on the waybill was ample notice to the Pere Marquette agent at Kaleva that the car was to be stopped at Big Rapids. It was ample notice to the conductor who took the cars from Kaleva to Baldwin, and it was like notice to the conductor who handled the cars between Baldwin and Saginaw, but none of them heeded it. But it is said the through billing with a stop-over was not in accordance with the rule of the tariffs on file. We are not informed as to that fact, as we find no tariff sheet in the record. There was some oral proof as to the written tariff, but this testimony was disputed by one of plaintiff’s witnesses, who testified that this was not an uncommon way of handling through cars. Whatever the truth may be in regard to that, we do not deem it very important. Whether the cars were billed through and a stop-over given, or whether there was a local billing from Interlochen to Big Rapids and from there a through rate to destination is not of much moment because the question involves no preference of rate or privilege. It simply involves a question of two modes of operation accomplishing the same thing, neither one of which was of any importance to the shipper. Besides, Mr. Avis testified that when the Pere Marquette agent at Kaleva discovered the manner of billing he should have held the cars and wired his office and he would have arranged to forward them to Big Rapids, by suppressing the through waybill and fixing a transit rate from Interlochen to Big Rapids, and later forwarded them on the through rate. If this duty had been followed the through rate would have worked out just the same. There was some proof by Mr. Fitzgibbons, who had been connected for eleven years with the Dennis Salt & Lumber Company, that the through billing with a stop-over at Big Rapids was the way much of the business was handled by the Pere Marquette. . It appears to us that the error was made by the Pere Marquette employees and that company must, therefore, suffer the consequences. The Pere Marquette takes the position that if it is liable it is only liable for the difference in cost of drying the lumber in Massachusetts and the cost of drying it at Big Rapids,, which was the sum of $294.45. Plaintiff contends that defendant was negligent in not advising the consignee that the lumber had not been kiln dried. Before the consignee learned of it, it sawed up the lumber into four-foot lengths. By increasing the number of ends the checking and warping so increased that the damage was greatly increased. The trial court took plaintiffs view of the damages and defendant assigns error and contends such damages were never in contemplation when the parties made the contract. The general rule of damages in an action'of tort is that the wrongdoer is liable for all injuries resulting directly from the wrongful acts, whether they could or could not have been foreseen by him, provided the particular damages in respect to which he proceeds are the legal and natural consequences of the wrongful act imputed to the defendant, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. ' Remote, contingent, or speculative damages will not be considered in conformity to the general rulé above laid down. To render a wrongdoer liable in damages, where the connection is not immediate between the injurious act and the consequences, such nearness in the order of events and closeness in the relation of cause and effect must subsist, as that the influence of the injurious act would predominate over that of other causes, and concur to produce the consequence or be traceable to those causes. 13 Cyc. p. 28. The question then arises whether the damages insisted upon by plaintiff are proximate or remote. The rule for testing this question is laid down, as follows: “It may be stated, as a general rule, however, that where the result of an unlawful act is a natural one and one that would naturally flow from the aet done, it is not remote but proximate. If, upon the contrary, the damages complained of would not naturally or usually flow from the negligent act, but were brought about by some unforeseen casualty, then they would be remote.” 13 Cyc. p. 27. Tested by this rule it appears to us that the proximate damages/ which resulted from defendant’s failure to stop the car at Big Rapids was the excess cost of kiln drying in Massachusetts over what it would have cost at Big Rapids. This was the damage which naturally and necessarily flowed from the negligent act of the defendant. The damages which resulted from sawing the lumber into four-foot lengths and the ends subsequently checking, appear to us to be the remote damages. It was a damage which did not naturally or necessarily flow from the wrongful act of defendant. These damages were unusual and were brought about by the peculiar use which was to be made of the lumber, but they do not necessarily flow from defendant’s negligent act. The proximate damages spoken of would always be the result of such negligence. The other damages might or might not ensue depending upon the peculiar use that was to be made of the lumber. It does not appear that the defendants were informed to what use the lumber was to be put. Plaintiff counts on defendant’s failure to notify the consignee that the lumber was not kiln dried. We are unable to see how this duty rested upon defendant. The defendant was not supposed to know that the consignee would use the lumber when it was unfit for its use. These damages appear to us to be too remote to be considered in the case as an element of damage. We are also impressed that there is another reason why these damages should be rejected. Mr. Fred Calkins, a lumber inspector, who was one of plaintiff’s witnesses, gave it as his opinion that a man with experience could tell, upon inspection, whether or not the lumber was kiln dried. If we are to assume this as true, then the inspector of the consignee should have, by reasonable inspection, discovered the fact that the lumber was not kiln dried before it was sawed up. This would render the consignee guilty of contributory negligence in sawing up the lumber before it had been kiln dried. The judgment against the Manistee & Northeastern Railroad Company is reversed with no new trial. The judgment against James C. Davis, as director general, will be reduced from $2,173.13 to $294.45, plus interest, and affirmed for that amount, on condition that plaintiff files in the trial court, within thirty days from the filing of this opinion, its consent to reduce the judgment as aforesaid. If such consent be not filed, then the judgment against James C. Davis, as director general, will be reversed and a new trial ordered. In neither event will either plaintiff or James C. Davis, as director general, recover his costs, in this court. Wiest, C. J., and Fellows, McDonald, Clark, Sharpe, Moore, and Steere, JJ.,, concurred

Clark, J. Plaintiff is a Nebraska corporation. Following the filing of its declaration defendant moved to dismiss on the ground that plaintiff had not procured from the secretary of State a certificate of authority to carry on its business in the State of Michigan as required by statute. See Act No. 84, Pub. Acts 1921 (Comp. Laws Supp. 1922, § 9053 [164]). The cause was dismissed. Plaintiff brings error and had accompanying writ of certiorari. The matter should have been pleaded and was not available upon a motion to dismiss. See Selznick Enterprises v. Garson Productions, 202 Mich. 106, 111; Vyse v. Richards, 208 Mich. 383; Pagenkoff v. Insurance Co., 197 Mich. 166, where the question is fully discussed. The order of dismissal is set aside with costs to plaintiff. The cause is remanded. Wiest, C. J., and Fellows, McDonald, Bird, Sharpe, Moore, and Steere, JJ., concurred.

Per Curiam. Plaintiff appeals as of right from the order of summary disposition, MCR 2.116(C)(10), entered by the Berrien Circuit Court for lack of a genuine issue as to any material fact such that defendant is entitled to judgment as a matter of law. We affirm. This appeal concerns the enforceability of a covenant not to compete contained in a stock redemption agreement into which the parties entered pursuant to an employment contract. Plaintiff is a professional corporation formed by Frank H. Bunker, M.D., and Benjamin Son, M.D., in July, 1973, and is established in the practice of cardiology in the Benton Harbor area. Doctors Bunker and Son are shareholders of and employed by plaintiff corporation. In January, 1982, the parties entered a written employment agreement. The contract terms included the following stock ownership provision: 10. Stock Ownership. Although the Employer’s activities are primarily of a personal-service nature, funds are required for equipment purchases and working capital. Accordingly, as a condition of continued employment, it is understood that on July 1, 1984, provided the Employee is then in the employ of the Employer, that the Employee will purchase a sufficient number of shares of the common capital stock of the Employer, such that he becomes an equal one-third (Várd.) shareholder. With the approval of the Employer’s independent public accountant, using book value and adjusting the same to reflect the difference between book value and the fair-market value of equipment, improvements and marketable securities. To this shall be added accounts receivable to the extent not reflected in computing book value, with appropriate reductions to reflect uncollectable receiv-. ables. In paying for said shares, the Employee shall be accorded a three (3) to five (5) year payment privilege, at reasonable interest rates. At the time of said purchase the Employer’s Stock Redemption Agreement currently in effect shall be amended to provide for a repurchase of said shares in the event of the Employee’s death or termination of employment at a price computed in the same manner as here called for. In July, 1982, defendant moved from Nebraska, where he had practiced cardiology for thirteen years, and began work as an employee of plaintiff. On September 23, 1983, the parties entered another employment agreement and a stock redemption agreement. The stock redemption agreement contains the following covenant which plaintiff now seeks to enforce: 11. Covenant Not to Compete. In partial consideration for the redemption by the Corporation of the said shares, the Shareholder agrees that for a period of two (2) years (the same to be computed from the date of his termination of employment) that he will not engage in the practice of cardiology, either as a self-employed person, or as a partner or employee of any organization so en gaged in the rendering of said services within, or within a radius of thirty-five (35) miles of Benton Harbor, Michigan. This covenant shall not have application to a Shareholder, once said Shareholder has been a Shareholder in the Corporation for two (2) years or more. On that same date, defendant purchased shares of stock in plaintiff corporation from Dr. Bunker and Dr. Son in a number equal to those shares possessed by the two doctors. The agreed acquisition cost was in the principal amount of $110,000. As a down payment, defendant paid $30,000 in cash to Dr. Bunker and Dr. Son in equal shares. To cover the remaining $80,000 balance, defendant executed promissory notes in favor of the two doctors under which each would receive the principal sum of $40,000 plus interest at ten percent per annum. This indebtedness was secured by defendant’s pledge of his shares of stock. On January 24, 1985, Dr. Bunker and Dr. Son notified defendant that his employment would be terminated effective April 30, 1985, as a result of professional differences between them. When the two doctors learned of defendant’s intention to open his own cardiology practice in the Benton Harbor area, they filed this lawsuit seeking an injunction to enforce the covenant not to compete. The trial court denied plaintiff’s initial motion for a temporary injunction. One month later, the trial court heard and granted defendant’s motion for summary disposition from which this appeal arises. A motion for summary disposition under MCR 2.116(C)(10) asserts that no genuine issue of material fact exists. Linebaugh v Berdish, 144 Mich App 750; 376 NW2d 400 (1985). The parties here agree that no dispute of material fact exists. In deciding such a motion, the trial court must con sider the affidavits, pleadings, depositions, admissions and other documentary evidence. MCR 2.116(C)10) and(G)(5). Plaintiff disagrees with the trial court’s legal analysis and conclusions of law. On appeal plaintiff urges this Court to make a de novo review, because this is an action in equity. We decline to engage in a de novo review, but decide this appeal upon the law. At common law, a covenant not to compete was enforceable if it met four standards established by Hubbard v Miller, 27 Mich 15, 19; 15 Am Rep 153 (1873). First, the covenant must be for an honest and just purpose. Second, it must be established for the protection of the legitimate interest of the party in whose favor it is imposed. Third, it must be reasonable as between the parties to the contract. Finally, it must not be specially injurious to the public. Id. The common law rule was changed in 1905, Buckhout v Witwer, 157 Mich 406, 409; 122 NW 184 (1909), when the Legislature enacted MCL 445.761; MSA 28.61 which provides: All agreements and contracts by which any person, copartnership or corporation promises or agrees not to engage in any avocation, employment, pursuit, trade, profession or business, whether reasonable or unreasonable, partial or general, limited or unlimited are hereby declared to be against public policy and illegal and void. This statutory provision was limited by the exceptions contained in MCL 445.766; MSA 28.66 which provides: This act shall not apply to any contract mentioned in this act, nor in restraint of trade where the only object of restraint imposed by the con tract is to protect the vendee, or transferee, of a trade pursuit, avocation, profession or business, or the good will thereof, sold and transferred for a valuable consideration in good faith, and without any intent to create, build up, establish or maintain a monopoly; nor to any contract of employment under which the employer furnishes or discloses to the employe a list of customers or patrons, commonly called a route list, within certain territory in which such employe is to work, in which contract the employe agrees not to perform similar services in such territory for himself or another engaged in a like or competing line of business for a period of 90 days after the termination of such contract or services. Both statutory provisions were in effect when the parties entered the first employment contract in January, 1982, and the two agreements in September, 1983. These provisions were repealed by § 17 of the Michigan Antitrust Reform Act, 1984 PA 274, MCL 445.787; MSA 28.70(17), which took effect March 29, 1985. Section 18 of the Michigan Antitrust Reform Act contains a saving clause which provides that a statute repealed by the act shall remain in force for the purpose of instituting or sustaining any proper action for the enforcement of any liability. MCL 445.788; MSA 28.70(18). Thus, we decide this appeal in light of the law existing under these statutory provisions at the time the parties entered their written agreements. This Court has enforced a covenant not to compete under a contract for the sale of a business which came within the terms of the statutory exception. Roland v Kenzie, 11 Mich App 604, 608; 162 NW2d 97 (1968). In that case, the defendant sold his optometry practice, equipment and list of patients to another optometrist, the plaintiffs associate, under an agreement containing a noncom- petition clause. The contract provided that upon the plaintiff’s request the defendant would provide consulting services with respect to his former patients. The plaintiff was permitted to use the defendant’s name in the practice of optometry for three years and permitted to use the telephone listing of the defendant. The plaintiff was further permitted to send out announcements to the effect that the defendant was associated with him in the practice of optometry. The contract provided a liquidated damages provision in the event that the defendant breached the contract. Approximately two years after the sale, the defendant opened another office for the practice of optometry, and breached the contract by contacting former patients. This Court enforced the covenant not to compete, describing it as an appropriate provision to limit the competitive ability of the defendant in order to protect the good will of the professional business transferred. Id., p 608. This Court has refused to enforce a covenant not to compete in other cases in which a new employee joins a professional practice, subsequently enters a partnership agreement and then leaves the practice to establish or to join a competing business. Boggs v Couturier, 115 Mich App 735; 321 NW2d 794 (1982); Bernstein, Bernstein, Wile & Gordon v Ross, 22 Mich App 117; 177 NW2d 193 (1970). In Boggs, the defendant, a recent graduate of veterinary school, began working for the plaintiff. Almost two years later, they entered into a limited partnership agreement under which the plaintiff was a general partner holding a seventy-six percent interest in the business and the defendant was a limited partner holding the remaining twenty-four percent interest. The contract contained a termination provision which permitted either party to retire from the partnership upon written notice, and further provided that the plaintiff would have the privilege to continue operations under the name of the clinic and the use of the clinic’s telephone number. The contract further contained a covenant not to compete which expressly excepted the plaintiff from its provisions and permitted the plaintiff to remain in the present location of the business. Approximately four years later, the defendant gave notice of his intent to withdraw from the limited partnership, and the parties agreed as to the amount owed the defendant as a return of his original capital investment. When the plaintiff attempted to enforce the covenant, this Court concluded that the case did not come within the statutory exception because no sale of good will occurred. The Court noted that no good will was linked to the defendant’s participation in the partnership which could be transferred on dissolution, and therefore, all the good will reposed with the plaintiff who had started the business well before the defendant was employed. The Court relied upon the holding of Bernstein, Bernstein, Wile & Gordon v Ross, supra, because of its similar factual setting. Boggs, supra, pp 742-743. In Bernstein, Bernstein, Wile & Gordon v Ross, supra, the defendant entered into a written partnership agreement with the plaintiff accounting firm after having worked there for approximately two years as an employee. He purchased a five percent interest, making no initial payment and arranging for his periodic payment to be made out of his share of the profits. Approximately one year later, defendant voluntarily terminated his relationship with the plaintiff and began his own practice. The plaintiff accounting firm attempted to enforce the covenant not to compete. The Court concluded that the statutory exception did not apply, because no sale or transfer of a business, profession or good will occurred where the defendant had no singular or separate business, profession or good will to sell to the partnership. In another line of cases, Michigan courts have refused to enforce a covenant not to compete contained in an employment contract. E W Smith Agency, Inc v Sanger, 350 Mich 75, 81; 85 NW2d 84 (1957); Wedin v Atherholt, 298 Mich 142, 145; 298 NW 483 (1941); Mackie v State Farm Mutual Automobile Ins Co, 13 Mich App 556; 164 NW2d 777 (1968). Our resolution of this case requires us to determine the nature of the parties’ agreement. That is, does their agreement constitute a sale of an interest in a business or profession (e.g., the practice of cardiology) with employment incident to the sale or does it constitute an employment contract with the sale of stock incident to employment. Vogue Cleaners & Dyers, Inc v Berkowitz, 292 Mich 575, 579-580; 291 NW 12 (1940). In our view, it is the latter. Support is found in the express terms of the January, 1982, employment contract which required defendant to purchase stock as a condition of continued employment. Additional support is found in the nature of the relationship between plaintiff and defendant, e.g., employer-employee, and the fact that the covenant not to compete applied only to defendant and not to Dr. Bunker or to Dr. Son. Although they are not completely similar, the facts of this case are more closely analogous to the factual pattern described in Boggs and Bernstein. Although defendant was not new to the profession, he was new to the market in the Benton Harbor area. His status in relation to plaintiff corporation was that of a mere employee for approximately one year before he became a shareholder. Like Boggs, the stock redemption agreement restored the status quo. Although the method of valuing defendant’s shares results in a greater return to defendant than the initial purchase price, the pleadings do not allege that the increase in value is not attributable to defendant’s individual contributions (e.g., development of his own clientele or good will, and the like). Defendant claims that the covenant is unenforceable because the parties’ agreement is not within one of the limited exceptions contained in MCL 445.766; MSA 28.66, and therefore is barred as against public policy. Plaintiff claims that the agreement is one for the sale of a business within the first statutory exception. Thus, plaintiff claims that the only objective of the covenant is to protect the corporation. Second, the covenant is incident to a sale of an interest in the corporation and in its good will. Finally, the transfer or sale of stock qualifies under the statutory exception regardless of whether it accompanies an involuntary termination of employment. We agree with the trial court that the covenant did not have as its sole object the protection of plaintiff corporation. The covenant was designed to protect the corporation for a mere two years and by its terms did not apply to Dr. Bunker and Dr. Son. It is reasonable to conclude that the covenant sought to protect the corporation from competition by a newly hired employee who leaves rather than complete protection of the corporation’s good will. We also reject the argument that the stock redemption constitutes a sale of an interest or a sale of good will. The stock redemption did not effect a complete transfer of the corporation’s business, equipment and list of patients. Compare, Roland v Kenzie, supra. Further, defendant was merely reselling that which he had initially purchased from the corporation without selling a separate business interest or good will. Compare, Boggs v Couturier, supra. Finally, we reject plaintiffs argument that the stock redemption constitutes a transfer or sale of stock without regard to defendant’s involuntary termination. In order to accept this argument, we would have to ignore the fact that defendant’s purchase and sale of the shares were exclusively tied to his employment status. We prefer to view the parties’ relationship and these transactions in their entirety, and not in isolation. We conclude that this case does not come within the statutory exceptions. Therefore, the covenant is void as against public policy and unenforceable. Having decided this case under the statutory provisions, we do not consider the enforceability of the covenant under the common law. Having determined that the covenant is void as against public policy, plaintiffs estoppel argument is without merit. Affirmed.

Per Curiam. Plaintiffs appeal as of right from a circuit court order granting accelerated judgment in favor of defendant E & E Engineering, Inc., and summary judgment in favor of third-party defendant Roumell Catering Company, Inc. We affirm. This action arises from an April 30, 1981, automobile collision in which a vehicle driven by plaintiff Geraldine Leszczynski was struck head-on by a vehicle driven by defendant Mark Johnston. Geraldine Leszczynski sustained serious injuries as a result of the collision. The facts of the case are as follows. On April 30, 1981, a tool and die show was held at Cobo Hall in Detroit. Ken-Tec Corporation obtained several free tickets to the show and allowed many of its employees, including Johnston, to leave work an hour early to attend the show. While at the show, defendant Johnston visited E & E’s hospitality room where he consumed food and alcohol. E & E had hired Roumell to cater the room. Johnston left the show with a co-worker. They drove around Detroit and made two stops, one at a bar, before returning to Johnston’s home. Johnston left his home again, apparently to purchase gasoline. He was subsequently involved in an automobile accident with Geraldine Leszczynski. Plaintiffs originally filed suit against defendant Johnston only. Plaintiffs subsequently filed a first amended complaint adding E & E and Ken-Tec as party defendants. E & E also filed a third-party complaint against Roumell. Plaintiffs’ first amended complaint alleged that Johnston was a guest of E & E at a business promotion, the purpose of which was monetary gain for E & E. Further, it was alleged that E & E was negligent in furnishing alcohol to Johnston, who was visibly intoxicated. There were no allegations of a violation of the dramshop act, MCL 436.22; MSA 18.993. E & E filed a motion for summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10), asserting that there was no evidence that Johnston was intoxicated while at the hospitality room and that E & E owed no duty to plaintiff Geraldine Leszczynski. E & E also filed a motion for accelerated judgment pursuant to GCR 1963, 116.1(5), now MCR 2.116(C)(7), asserting that the common law does not recognize a cause of action for negligence in serving intoxicating liquors to a visibly intoxicated person, that the dramshop act provides the exclusive remedy for serving intoxicating liquors to a visibly intoxicated person, and that plaintiffs’ action was barred by the two-year statute of limitations provision in the act. The trial court heard oral argument on defendant’s motions and took the matter under advisement. In a subsequent opinion, the trial court found that any dramshop claim of plaintiffs was barred by the two-year statute of limitations. The trial court further found that plaintiffs’ common-law theories of liability were barred by the exclu sive remedy provisions of the dramshop act. Thus, the trial court granted accelerated judgment in favor of E & E and summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8), in favor of third-party defendant Roumell. Plaintiffs argue on appeal that the trial court erred in granting accelerated judgment in favor of E & E. Plaintiffs assert that they brought only a common law claim against E & E for negligently serving alcoholic beverages to a visibly intoxicated person, that they did not file an action under the dramshop act, and that the two-year statute of limitations contained in the act is inapplicable to the instant case. We agree with plaintiffs’ assertion that their action against defendant E & E was a common-law negligence action and not a dramshop claim. Defendant E & E is not a licensed liquor retailer; therefore, liability may not be premised on the provisions of the dramshop act. Guitar v Bieniek, 402 Mich 152, 166; 262 NW2d 9 (1978); Romeo v Van Otterloo, 117 Mich App 333, 340; 323 NW2d 693 (1982), lv den 417 Mich 1004 (1983). We agree with plaintiffs that the trial court improperly dismissed plaintiffs’ claims based upon the exclusive remedy and two-year statute of limitations provisions of the dramshop act. However, for different reasons than those of the trial court, we affirm the dismissal of plaintiffs’ claim. This Court will generally affirm a trial court’s decision arrived at for the wrong reasons as long as the right result has been reached. Smith v Motorland Ins Co, 135 Mich App 33, 39; 352 NW2d 335 (1984), lv den 422 Mich 854 (1985). Further, when a trial court mistakenly grants a motion for accelerated judgment, we may consider whether the decision may be upheld under the summary judgment rule where there is no prejudice to the plaintiff. Gilbert v Grand Trunk W R Co, 95 Mich App 308, 315; 290 NW2d 426 (1980), lv den sub nom Gilbert v Criswell, 410 Mich 854 (1980). We find that plaintiffs failed to state a viable common-law cause of action against defendant E & E; therefore, a grant of summary judgment would have been appropriate under GCR 1963, 117.2(1). Further, plaintiffs are not prejudiced by such a ruling because all parties understood the nature of E & E’s motion and were aware that E & E was challenging the existence of a common-law cause of action for serving alcohol to a visibly intoxicated person. At common law, it was not a tort to sell or furnish intoxicating liquors to an adult. This rule was based upon the theory that it is the drinking rather than the furnishing of the liquor which is the proximate cause of the injury to a third party. Longstreth v Gensel, 423 Mich 675, 684; 377 NW2d 804 (1985); Whittaker v Jet-Way, Inc, 152 Mich App 795; 394 NW2d 111 (1986). In Whittaker, the plaintiffs were seriously injured in an automobile accident which occurred when the vehicle in which they were passengers was struck from behind by a vehicle driven by Stanley Price. Price was an employee of defendant Jet-Way and had attended a Christmas party hosted by Jet-Way on the evening of the accident. While at the party, Price consumed alcoholic beverages provided by Jet-Way and became intoxicated. Plaintiffs sought to hold Jet-Way liable for serving alcohol to a guest who was visibly intoxicated. The trial court granted summary judgment in favor of Jet-Way. This Court affirmed. In doing so, this Court specifically declined to change the common law of this state by recognizing a cause of action against a social host who furnishes alcohol to a tortfeasor. We also decline to make such a change in the common law in the case at bar. Plaintiffs strenuously argue that a common-law cause of action exists against E & E under the rule announced in Romeo, supra. We disagree. In Romeo, the defendant-employer hosted a party for one of its corporate clients to further its business relationship with that client. Defendant Van Otterloo was requested by his employer to host the party. Van Otterloo became intoxicated while performing his function as host on behalf of his employer. On his way home from the party, Van Otterloo was involved in an automobile accident which fatally injured one person. The trial court in Romeo granted summary judgment in favor of the defendant-employer for the plaintiff’s failure to state a claim on which relief could be granted. This Court reversed, holding that the plaintiff had stated a valid cause of action under the doctrine of respondeat superior and for negligent supervision. This Court found that the defendant had required Van Otterloo to play the role of host in circumstances where it was likely that alcohol would be consumed. In doing so, the defendant created the risk that Van Otterloo would become intoxicated and endanger others. The facts of the instant case, however, are easily distinguished from Romeo. Johnston was not an employee of E & E who was required to host E & E’s hospitality room. Rather, Johnston voluntarily visited E & E’s hospitality room as a social guest. We hold that plaintiffs have failed to state a viable cause of action against defendant E & E. At common law, a third party has no cause of action against a social host who furnishes alcohol to a guest who is visibly intoxicated. The trial court did not err in dismissing plaintiffs’ action against E & E. We decline to address the issue raised in E & E’s cross-appeal as our disposition of the case renders it moot. Affirmed.

Archer, J. At issue is whether the plaintiff, Pi-Con, Inc., who furnished materials and services to a subcontractor on a public works project, may recover money owed for those materials and services under the provisions of a public works payment bond, where the notice of furnishing materials and services was sent to defendant general contractor, A. J. Anderson Company, by ordinary mail, but not, as required by statute, by certified mail. We hold that, so long as Pi-Con timely sent notice which otherwise complies with the notice requirements of the public works bond act, MCL 129.207; MSA 5.2321(7), and Pi-Con proves by a preponderance of the evidence that Anderson timely received notice, Pi-Con’s failure to send notice via certified mail will not preclude recovery on the bond. i Pi-Con entered into a contract with Brian & Gregory Contracting Company, a subcontractor of Anderson, to furnish materials and services for a construction project at Cass Technical High School in Detroit for which Andérson was the general contractor. The contract between Pi-Con and Brian & Gregory is dated November 4, 1982. Pi-Con asserts that it began furnishing materials and services pursuant to the contract on November 22, 1982. The statute provides that a claimant not having a direct contractual relationship with a general contractor shall not have a right of action upon a public works payment bond unless two written notices are served, the first within thirty days after the first furnishing of materials or labor, and the second within ninety days of the last furnishing of materials or labor. The statute further provides that the notices "shall be served by mailing the same by certified mail.” Pi-Con claimed in its affidavit in support of its motion for summary disposition that it mailed notice to Anderson and the Detroit Board of Education, with a copy to Brian & Gregory, on Decem ber 15, 1982, advising that Pi-Con was supplying materials and services to Brian & Gregory for the Cass Technical project. The notice was sent by ordinary first-class mail and not, as required by the statute, by certified mail. Anderson asserts that a copy of the December 15 notice could not be found in Anderson’s file, and alleges it never received it. Pi-Con, on September 6, 1984, within ninety days of the last furnishing of materials or labor, notified Anderson and the school board by certified mail that Brian & Gregory owed Pi-Con $25,140. Brian & Gregory had by then filed for bankruptcy. This action was commenced to recover on the payment bond. The circuit court granted Pi-Con’s motion for summary judgment on the basis that Anderson had actual notice of Pi-Con’s work on the Cass Technical project. The Court of Appeals reversed, holding, in reliance on decisions of that Court, "that mailing notice by regular mail, despite evidence of actual notice, does not satisfy the statute and that strict compliance with the statute’s notice requirements is required.” We reverse. ii We are guided by the decision of the United States Supreme Court in Fleisher Engineering & Construction Co v United States ex rel Hallenbeck, 311 US 15; 61 S Ct 81; 85 L Ed 12 (1940). There, in an action brought on behalf of a subcontractor against the principal contractor to recover on a public works payment bond, the Court held that where actual receipt of the notice and the sufficiency of its statements had not been challenged, the failure to send notice by registered mail would not prevent recovery on the bond. Fleisher construed the Miller Act, 40 USC 270b(a), the federal public works bond on which Michigan’s statute is modeled. The notice requirements of the Miller Act are nearly identical with those of the statute at issue here, except the federal statute requires notice to the general contractor of a public works project only once, within ninety days from the date on which the subcontractor completes its work. The Supreme Court held that substantial compliance with the notice requirements was sufficient to perfect an action on the bond: We think that the purpose of this provision [notice by certified mail requirement] as to manner of service was to assure receipt of the notice, not to make the described method mandatory so as to deny right of suit when the required written notice within the speciñed time had actually been given and received. In the face of such receipt, the reason for a particular mode of service fails. It is not reasonable to suppose that Congress intended to insist upon an idle form. Rather, we think that Congress intended to provide a method which would afford sufficient proof of service when receipt of the required written notice was not shown. [Fleisher, supra at 19. Emphasis added.] We agree. Applying Fleisher’s reasoning to Michigan’s public works bond statute as illuminated by prior case law, we hold that a claimant on a bond may maintain an action on the bond upon establishing compliance with four substantive elements of the notice provisions of MCL 129.207; MSA 5.2321(7). First, a claimant must prove that the principal contractor actually received notice. Second, the notice must relate "the nature of the materials being furnished or to be furnished, or labor being performed or to be performed and identify[] the party contracting for such labor or materials and the site for the performance of such labor or the delivery of such materials . . . .” Third, the notice sent must have been written. Fourth, the notice must have been received within the time limits prescribed by the statute. This Court established the fourth element in People ex rel Wheeling Corrugating Co v W L Thon Co, 307 Mich 273; 11 NW2d 886 (1943). In that case we denied recovery to a claimant who was sixty days tardy in giving notice of the completion of its work, holding that the time limits contained within the public works bond act were mandatory. Cf. People ex rel Chasteen v Michigan Surety Co, 360 Mich 546; 104 NW2d 213 (1960). As to the third element, this Court established in People ex rel F Yeager Bridge & Culvert Co v Cooke Contracting Co, 372 Mich 563; 127 NW2d 308 (1964), that provision of written notice was required under the statute. "Mere knowledge by a surety that a certain party had furnished materials is insufficient notice.” Id. at 565. See also Square D Environmental Corp v Aero Mechanical, Inc, 119 Mich App 740; 326 NW2d 629 (1982). Federal courts interpreting the Miller Act have also held that for a notice to a contractor to be sufficient, it must be written. See, e.g., United States ex rel Excavation Construction, Inc v Glenn-Stewart-Pinckney Builders & Developers, Inc, 388 F Supp 289, 296-297 (D Del, 1975). The second element, regarding the detail required in the notice, was clarified in Wheeling, where this Court stated that conversations between the general contractor and the surety regarding the several parties furnishing materials on the project could not fulfill the notice requirement. The conversations did not comply with the notice requirement because they were "of a very general nature . . . with nothing specific being said as to the amount or character of any of these claims.” Wheeling at 277. We look to Fleisher in establishing the first element, that the principal contractor must actually receive notice in order, for a claimant to perfect its right on the bond. Fleisher determined that the purpose behind the Miller Act’s provisions regarding the method of mailing notice "was to assure receipt of the notice . . . .” Id. at 19. The purpose behind the thirty-day notice required by MCL 129.207; MSA 5.2321(7) is to provide principal contractors with detailed notice of a subcontractor’s involvement on a project before, if not soon after, the commencement of that involvement. Such notice is necessary to ensure principal contractors knowledge regarding any possible claims to which their bonds might later be subjected and to assure that principal contractors are not prejudiced by having to pay out of a bond for labor or materials performed by third parties after already paying their subcontractors for that same labor or materials. So long as the principal contractors receive notice, the intent of the Legislature is fully complied with. To insist that the notice be given by certified mail would require insisting on "idle form.” Fleisher at 19. hi We further hold that Pi-Con is allowed to prove Anderson’s actual receipt of timely written notice by a preponderance of the evidence. It is possible to limit the rule of Fleisher to its facts and hold that the certified mailing requirement is not strictly required only when the principal contractor does not dispute receiving the notice. We decline to read Fleisher that narrowly and note that federal courts interpreting the Miller Act’s notice requirements after Fleisher have similarly rejected such a reading. In United States ex rel Birmingham Slag Co v Perry, 115 F2d 724 (CA 5, 1940), the court held that the claim of a . supplier of materials was not barred where the trial court found as fact that the principal contractor received notice of the supplier’s claim in a letter the contractor received, through ordinary mail, from the government agency paying for the construction project. In National State Bank of Newark v Terminal Construction Corp, 217 F Supp 341, 355 (D NJ, 1963), the defendant principal contractor denied receiving notice as required by a bond, but the court held, citing Fleisher, "[although the bonds require that the notice be sent by registered mail, this is not necessary if the claimant can show that the notice was actually received.” In Glenn-StewartPinckney, supra, and United States ex rel Twin Co Transit Mix, Inc v R P McTeague Construction Corp, 264 F Supp 619 (ED NY, 1967), the courts held that where receipt of notice is denied, claimants may prove receipt in the same manner as any other fact so long as they sustain their burden of proof by a preponderance of the evidence. Cf. Coffee v United States ex rel Gordon, 157 F2d 968 (CA 5, 1946). The dissent argues that, in order for the plaintiff to maintain an action on the bond, it must either comply with the certified mailing requirement or present some other proof that would foreclose the existence of a genuine factual dispute regarding receipt of the notice. The dissent claims such an interpretation is necessary to prevent rendering the certified mailing requirement "nugatory.” Post, p 406. However, the dissent’s interpretation itself would render the certified mailing requirement nugatory, because it would impose a hypertechnical requirement elevating form over substance. The dissent’s reasoning appears to be grounded in the belief that the certified mailing requirement is entirely procedural, designed to control the nature and quality of proofs in any action on the bond. Instead of finding any substantive purpose in the certified mail requirement, the dissent concludes that it is intended to require uncontrovertible proof of the general contractor’s receipt. The dissent, in our view, is wrong in this regard. Had the Legislature desired a procedure whereby it could conclusively be established that defendant received plaintiff’s notice, it would have required notice be sent certified mail with return receipt requested. Certified mailing alone does not guarantee the retention of records of delivery, because the United States Postal Service retains such records for only two years. By requiring notice be sent return receipt requested, on the other hand, the Legislature could have ensured that all claimants on bonds always had proof of delivery. Likewise, had the Legislature intended solely to control the manner of proof of receipt, it could have drafted a statute which required claimants to prove receipt of notice by means of postal records of certified mail delivery. Thé statute at hand, however, regulates the manner of delivery, not the method of proof of delivery. We view the certified mail requirement as substantive. The Legislature, recognizing the vagaries of ordinary first-class mail, required certified mailing as a way to better ensure actual receipt of the notice. The Legislature intended to protect public works bonds from claims by materialmen and subcontractors of whose participation on the project the general contractor was not notified; it mandated a more certain form of postage to specify that first-class mailing was inadequate, not to control the form of proof of receipt in any subsequent actions on the bond. As the Court stated in Fleisher: ”We think that the purpose of this provi sion as to manner of service was to assure receipt of the notice . . . .”311 US 19. (Emphasis added.) Because we agree with the Supreme Court that the certified mail requirement is intended to ensure actual receipt and not to qualify the right to sue on a manner of delivery or proof of delivery, we hold that the plaintiff has a right to prove actual receipt of notice by a preponderance of the evidence. Such a rule furthers the substantive purpose of the notice requirement and prevents a danger which the dissent’s rule would allow. Under the rule advocated by the dissent, general contractors could defeat legitimate claims on public works bonds where the claimants fail to send otherwise sufficient notice by certified mail by simply raising a factual dispute regarding receipt of the notice. Allowing contractors such a trump card would run contrary to the ultimate purpose of the public works bond act, the protection of subcontractors and suppliers of materials. IV Given the procedural posture of this case, we remand to allow the plaintiff a chance to prove by a preponderance of the evidence that Anderson received timely, written, and sufficient notice of Pi-Con’s participation in the Cass Tech project. The trial court granted the plaintiff’s motion for summary disposition under MCR 2.116(0(10), finding that there was no genuine issue with regard to any material fact and that plaintiff was entitled to judgment as a matter of law. The trial court never made a finding regarding whether the defendant ever actually received the notice which the plaintiff claims to have sent. In fact, counsel for the plaintiff conceded at the hearing on the summary disposition motion that "maybe there is an issue of fact as to whether [Anderson] received a notice.” The trial court’s ruling, therefore, is based on its holding that Anderson’s mere knowledge of Pi-Con’s participation in the construction project, coupled with Anderson’s assertion that it mailed the notice, constituted sufficient substantial compliance with the notice requirement. The Court of Appeals reversed the decision of the trial court, and took the extra step of ordering summary judgment for the defendant under MCR 2.116(0(10). The Court concluded that the statute required strict compliance and that the plaintiff’s claim was unperfected as a matter of law because of the failure to send the notice via certified mail. Granting summary disposition for either party under MCR 2.116(0(10) is inappropriate because of the existence of a dispute regarding the material fact whether notice was actually received. Pi-Con, therefore, is entitled to a trial to resolve this issue. We reverse the judgment of the Court of Appeals and remand the case to the trial court for proceedings consistent with this opinion. Levin, Cavanagh, and Griffin, JJ., concurred with Archer, J. Levin, J. (separate statement). The statute provides in effect that an unpaid subcontractor, laborer, or supplier of materials shall have a direct right of action against the general contractor and its surety for the amount owing for labor and materials supplied for the undertaking of the general contractor although the unpaid subcontractor, laborer, or supplier does not have a direct contractual relationship with the general contractor. The statute provides, however, that such an unpaid claimant "shall not have a right of action” unless a written notice is served on the general contractor within thirty days after the first furnishing of labor or materials and another written notice is served on the general contractor and the governmental unit within ninety days of the last furnishing of labor or materials. I have signed the opinion of the Court because I agree that summary disposition was inappropriate in the circumstance that there was a dispute regarding the material fact whether the notice required to be given within thirty days was actually received. 1 write separately because I would broaden the scope of the inquiry on remand to include consideration of whether Anderson paid Brian & Gregory for labor and materials supplied by Pi-Con before Pi-Con served notice on Anderson that it intended to rely on its rights under the statute. Pi-Con claims that the thirty-day notice was actually received. Pi-Con may prevail on that basis on remand. If, however, it is decided on remand that the notice was not actually received, that should not be determinative if notice of the claim reached Anderson before it paid Brian & Gregory for labor and materials supplied by Pi-Con. _ The policy of the statute is that if the funds remaining owing by the general contractor (Anderson) to the subcontractor (Brian & Gregory) under their contractual arrangements are insufficient to pay an unpaid claimant (Pi-Con) because of vicissitudes of the job or of the general contractor/subcontractor contractual relationship, the loss is allocated to the general contractor. The loss is allocated to the unpaid claimant if the general contractor pays the subcontractor for labor and materials supplied by the unpaid claimant before the unpaid claimant served notice under the statute on the general contractor. i I agree with my colleagues that notice must be served before an unpaid claimant may maintain an action. Unless the requisite notices shall have been served within the thirty- or ninety-day periods, the general contractor (Anderson) is at liberty thereafter to pay a subcontractor (Brian & Gregory) with whom it does have a direct contractual relationship amounts owing an unpaid claimant (Pi-Con). Requiring Anderson to pay Pi-Con may very well mean that Anderson would be required to pay more in respect to its contract with Brian & Gregory than it contracted to pay. That might result, however, because Brian & Gregory was unable to obtain the supply of labor and materials within the amount it bid for the job either because it bid too low, misadventure on the job, unanticipated contingencies, or other circumstances. The statute provides a right of direct recovery by the unpaid claimant against the general contractor and its surety without regard to whether there is sufficient money owing by the general contractor to the subcontractor to pay the unpaid claimant in full. The statute thus imposes, for the benefit of the unpaid claimant, on the general contractor the risks or loss resulting from the vicissitudes of the job and of general contractor/subcontractor contractual relationships. Loss so resulting cannot, consistent with the policy of the statute, be shifted to the unpaid claimant because of inconsequential delay in serving notice of claim. It might be argued that the statute allocates such risks to the general contractor only for the benefit of an unpaid claimant who serves timely notice. Such literalism ignores the apparent policy of allocating the risks of loss resulting from vicissi tudes of the job and of the contractual relationships to the general contractor. Pi-Con’s providing timely notice would not have prevented vicissitudes of the job or of the contractual relationships that gave rise to a shortfall in the amount of money owing by Anderson to Brian & Gregory available to pay Pi-Con. Providing timely notice can protect only against the possibility that Anderson will have paid Brian & Gregory for labor and materials- supplied by Pi-Con and then be called upon to pay again for the same labor or materials. A general contractor should not be permitted to escape from the responsibility imposed on it by statute because of a failure to serve timely notice that had no bearing on and did not cause the events that give rise to the money shortfall. Where the loss of the general contractor cannot be attributed to delay in complying with notice requirements, where the loss is attributable to failure of performance by the subcontractor of its contractual obligations owing the general contractor, not attributable to a failure in performance of the unpaid claimant, the statutory purpose of providing a means of direct recovery without regard to the status of the general contractor/subcontractor relationship should not be defeated on the basis of inconsequential delay in serving notice of claim. ii The present public contractor bonding act was enacted in 1963. This Court has not construed that statute as providing that the thirty- or ninety-day notice provisions are so far mandatory that, even if the general contractor has not paid the subcontractor for labor or materials provided by the unpaid claimant, the unpaid claimant cannot recover from the general contractor. The correct construction of the 1963 act is thus an open question. The purpose of the notice provisions is to protect a general contractor, who makes disbursements to a subcontractor who fails to pay those with whom it deals, from being called upon to pay again for the same labor and materials. The thirty- and ninety-day notice provisions are mandatory in the sense that delay in giving notice defeats the claim of an unpaid claimant if the general contractor would, unless the time limits are enforced, in effect be required to pay again for the same labor and materials. The thirty- and ninety-day periods are notice provisions, not statutes of limitations. Notice provisions, in contrast with statutes of limitations, are not designed to bar stale claims, but to give early notice of a potential claim so that the person entitled to notice can protect itself by taking appropriate action. If the failure to give timely notice did not result in the prejudice that the giving of notice seeks to forestall, the claim should not be barred as if it were stale, the purpose of requiring notice not having been thwarted. iii Subsequent to the enactment of the 1963 public contractor bonding act, the Legislature repealed the mechanics lien law and enacted the construc tion lien act. That act provides, in effect, that even if an unpaid claimant files an untimely notice, the unpaid claimant’s right to a construction lien shall not be defeated except to the extent that payments were made pursuant to a sworn statement or waiver of lien "for work performed or material delivered by the lien claimant” (Emphasis added.) I would regard the construction lien act as a current statement of public policy and a guide to the construction of the earlier 1963 act even though the 1963 act has not been amended to so state. There is no reason to suppose that the Legislature might enact one policy in this regard for unpaid claimants in respect to private construction contracts and another for unpaid claimants in respect to public works construction contracts under the circumstance that, under the public contractor bonding act, the risk of loss is imposed on the general contractor, not the government. A claimant who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which payment bond is furnished under the provisions of section 3, and who has not been paid in full therefor before the expiration of a period of 90 days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which claim is made, may sue. on the payment bond for the amount, or the balance thereof, unpaid at the time of institution of the civil action, prosecute such action to final judgment for the sum justly due him and have execution thereon. A claimant not having a direct contractual relationship with the principal contractor shall not have a right of action upon the payment bond unless (a) he has within thirty days after furnishing the first of such material or performing the first of such labor, served on the principal contractor a written notice, which shall inform the principal of the nature of the materials being furnished or to be furnished, or labor being performed or to be performed and identifying the party contracting for such labor or materials and the site for the performance of such labor or the delivery of such materials, and (b) he has given written notice to the principal contractor and the governmental unit involved within ninety days from the date on which the claimant performed the last of the labor or furnished or supplied the last of the material for which the claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Each notice shall be served by mailing the same by certiñed mail, postage prepaid, in an envelope addressed to the principal contractor, the governmental unit involved, at any place at which said parties maintain a business or residence. The principal contractor shall not be required to make payment to a subcontractor of sums due from the subcontractor to parties performing labor or furnishing materials or supplies, except upon the receipt of the written orders of such parties to pay to the subcontractor the sums due such parties. [MCL 129.207; MSA 5.2321(7). Emphasis added.] Id. Anderson asserts it "had no knowledge of the status of subcontract payments between Brian & Gregory Contracting Company and Pi-Con, Inc.” Charles W Anderson Co v Argonaut Ins Co, 62 Mich App 650, 653-654; 233 NW2d 691 (1975); Square D Environmental Corp v Aero Mechanical, Inc, 119 Mich App 740, 744; 326 NW2d 629 (1982); John A Hall Construction Co v Boone & Darr, Inc, 102 Mich App 786, 795-796; 302 NW2d 850 (1981). Pi-Con, Inc v Anderson Construction Co, 169 Mich App 389, 394; 425 NW2d 563 (1988). [A]ny person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing said payment bond shall have a right of action upon the said payment bond upon giving written notice to said contractor within ninety days from the date on which such person did or performed the last of the labor or furnished or supplied the last of the material for which such claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Such notice shall be served by mailing the same by registered mail, ... or in any manner in which the United States marshall ... is authorized by law to serve summons. [40 USC 270b(a).] MCL 129.207; MSA 5.2321(7). The dissent claims that the Legislature "presumably adopted the certified mail requirement to substantiate receipt of the written notice and, therefore, avoid disputes regarding whether the principal contractor received written notice.” Post, p 405. However, the dissent offers no legislative history or case law authority to justify this "presumption.” In fact, the dissent fails to mention federal authority that has specifically rejected this interpretation of the certified mailing requirement of the Miller Act. See Twin Co Transit Mix, supra. We note the absence of a return receipt requirement not, as the dissent suggests, to inform the Legislature how it should write the statute, but to interpret how it did write the statute. We note only that, had the Legislature intended to control the manner of proof of delivery of notice, as the dissent suggests, it would have written the statute differently. The right of action arises on the ninetieth day after the last furnishing of labor or materials. See opinion of the Court, ante, p 379, n 1, for text of the statute. See opinion of the Court, ante, p 379, n 1, for text of the statute. Ante, p 388. If Anderson paid Brian & Gregory for labor or materials supplied by Pi-Con, it may have violated a procedure established by court order. The payment bond between Anderson as principal and Federal Insurance Company as surety is for $2,705,000 in respect to general building work for an addition to Cass Technical High School, Detroit. The contract between Brian & Gregory and Anderson was entered into on June 16, 1982, and stated a contract price of $990,000. Brian & Gregory filed a chapter 11 petition with the United States District Court on October 4, 1982. On October 22, 1982, a bankruptcy judge entered an order providing that Brian & Gregory was author ized to complete work on the Cass Technical High School project, and to enter into an amendment of the contract between Anderson and Brian & Gregory, and that the contract as amended was affirmed. The amendment provided that Brian & Gregory would furnish Anderson with a list of the names, addresses, and telephone numbers of all subcontractors and suppliers who were or may become claimants pursuant to § 7 of the public contractor bonding act (see n 1 for reference to the act), and that Brian & Gregory should furnish with each request for payment to Anderson a list of subcontractors, suppliers, and others who are entitled to receive payment for work reflected in the request for payment, and that Anderson "shall remit the net sum as determined by the parties, by check or other negotiable instrument made payable jointly to Brian & Gregory and the supplier.” In the Matter of: Brian & Gregory Contracting Co., Inc., No. 82-05593-B, document 12. (Emphasis added.) See n 6. Thereafter, on November 4, 1982, Pi-Con entered into a contract with Brian & Gregory to provide labor and materials for the Cass Technical High School project. Pi-Con’s claim filed with the trustee in bankruptcy in the amount of $26,845.10 was allowed, and Pi-Con received a "dividend” from the trustee for $7,266.30. A complaint commencing an action may constitute notice. No clearer statement of intent to enforce rights under the statute could be given. The statute provides, however, that a general contractor shall not be required to make payment to a subcontractor with whom it has a direct contractual relationship of sums due from the subcontractor to unpaid claimants for labor or materials. See last sentence of the statute quoted in the opinion of the Court, ante, p 379, n 1. And also without regard to the collectibility of the subcontractor or the claims of other creditors of the subcontractor. See n 4. 1963 PA 213, MCL 129.201 et seq.; MSA 5.2321(1) et seq. See Carver v McKernan, 390 Mich 96, 100; 211 NW2d 24 (1973); Hobbs v Dep’t of State Hwys, 398 Mich 90, 96; 247 NW2d 754 (1976). 1891 PA 179 as amended repealed by 1980 PA 497, § 303, MCL 570.1303; MSA 26.316(303). 1980 PA 497, MCL 570.1101 et seq.; MSA 26.316(101) et seq. (6) The failure of a lien claimant, to provide a notice of furnishing within the time specified in tins section shall not defeat the lien claimant’s right to a construction lien for work performed or materials furnished by the lien claimant before the service of the notice of furnishing except to the extent that payments were made by or on behalf of the owner or lessee to the contractor pursuant to either a contractor’s sworn statement or a waiver of lien in accordance with this act for work performed or material delivered by the lien claimant. This subsection does not apply to a laborer. (7) The failure of a laborer to provide a notice of furnishing to the designee as required by subsection (2) shall defeat the laborer’s lien for those wages for which the notice of furnishing is required. [MCL 570.1109; MSA 26.316(109). Emphasis added.]

Per Curiam. On November 18, 1985, defendant pled guilty to two charges of third-degree criminal sexual conduct and one charge of second-degree esc. He received concurrent sentences of from five to fifteen years in prison for each conviction. On appeal, defendant raises two sentencing issues. First, defendant argues that he could have been sentenced to a "straight jail term” and that therefore a statement in the presentence report (psr) that the two third-degree esc convictions required "mandatory prison sentences” was inaccurate. Since the psr allegedly contained inaccurate information, defendant argues that he is entitled to resentencing. As support for his position, defendant relies upon People v Blythe, 417 Mich 430; 339 NW2d 399 (1983). Defendant asserts that Blythe stands for the proposition that the offenses listed in MCL 771.1(1); MSA 28.1131(1) are not subject to mandatory prison terms even though the provision prohibits probation for such offenses. While there is language in Blythe that nonaggravated armed robbery, a nonprobational offense, does not require a mandatory minimum, this language must be read in context. Blythe rejected the view of People v Harper, 83 Mich App 390; 269 NW2d 470 (1978), lv den 406 Mich 1021 (1979), and People v West, 113 Mich App 1; 317 NW2d 261 (1982), that the language in the armed robbery statute, MCL 750.529; MSA 28.797, "any term of years” required a mandatory minimum prison term of at least a year and a day. In rejecting that view, the Court found that a six-month minimum prison term was acceptable. However, Blythe cannot be interpreted as holding that no mandatory prison sentence was required. Such a construction would render meaningless the language in MCL 771.1(1); MSA 28.1131(1) which prohibits probation for third-degree esc convictions. Defendant’s argument that he could have been sentenced to "straight time” in the county jail is also without merit. Under MCL 769.8; MSA 28.1080, a maximum sentence of fifteen years was required. As long as the maximum sentence is at least a year and a day, incarceration must be in prison, regardless of the sentence minimum. Blythe, supra, p 437. Thus, the statement in the psr that defendant’s two third-degree esc convictions required "mandatory prison sentences” was accurate. Second, defendant argues that the sentences imposed should shock this Court’s conscience. The sentencing guidelines recommended minimum sen tences of from three to five years. Defendant’s minimum sentences fell within this range and therefore are not conscience-shocking as a matter of law. People v Murray, 147 Mich App 227, 232; 383 NW2d 613 (1985), lv gtd 425 Mich 871 (1986). However, see People v Broden, 147 Mich App 470; 382 NW2d 799 (1985), lv gtd 425 Mich 871 (1986). Affirmed.

M. J. Kelly, P. J. Following a bench trial, defendant was convicted of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(e); MSA 28.788(2)(1)(e). He was sentenced to two concurrent prison terms of from forty to eighty years and now appeals from both his convictions and sentences as of right. We affirm his convictions but remand for further sentencing proceedings consistent with this opinion. Defendant was charged with the commission of criminal sexual conduct involving penetration and the use of a weapon: A person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person and if any of the following circumstances exists: * * * (e) The actor is armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe it to be a weapon. [MCL 750.520b(1)(e); MSA 28.788(2)(1)(e).] Defendant first argues that there was insufficient evidence to show that he was armed with a weapon or any article used or fashioned in a manner to lead the victim to reasonably believe there was a weapon. We disagree._ Complainant admitted that she never actually saw a gun. However, she believed her assailant had a gun because he shoved what "felt like a heavy metal-like object” into her side and asked her if she wanted to die. After the defendant was arrested, the police recovered a yellow-handled ratchet adapter near a pile of defendant’s clothes in the area of the house where the assault took place. Based on the complainant’s testimony, we believe that a rational trier of fact could conclude that the complainant reasonably believed that defendant was armed with a weapon when he forced her to submit to sexual penetration. See People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), reh den 407 Mich 1164 (1980), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980), and People v Petrella, 424 Mich 221; 380 NW2d 11 (1985). Defendant’s convictions are therefore affirmed. Defendant also argues that the trial court abused its sentencing discretion in departing from the ten-to-twenty-year minimum sentence range recommended under the sentencing guidelines. We are not persuaded that a minimum sentence which is twice the highest guidelines’ recommended minimum sentence automatically constitutes an abuse of sentencing discretion. However, this case points out some of the problems that appellate judges face in fathoming the consequences of the sentences they are reviewing and we are thus reluctant to simply affirm the sentences here imposed. Uniformity is not the goal of sentence review but we must ask ourselves if all levels of disparity are acceptable. Defendant was convicted of offenses which carry maximum sentences of life imprisonment. In People v Crawford, 144 Mich App 86; 372 NW2d 688 (1985), defendant was convicted of the same offense and sentenced to a term of imprisonment of from 80 to 120 years. In upholding that sentence as not excessive, the panel in Crawford commented upon life and indeterminate sentences in the context of sentence review: From a defendant’s standpoint in viewing length of time to be served, there is no sentence more severe than a life sentence. A sentence of 80 to 120 years is almost certain to be longer than a defendant’s life. Consequently, the purpose of a 80- to 120-year sentence seemingly has to be to recognize the heinous nature of defendant’s crime and to tell the public that such conduct will not be tolerated. [144 Mich App 89-90.] We agree that in some cases a life term will prove a harsher sentence than a term of years. The drop-off is far from clear; what is apparent may not prove true. Although we do not wish to take a stand on whether People v Crawford was correctly decided, we suggest that from the perspective of James Crawford and contrary to the view expressed by this Court, a life sentence in that case would have been much less severe than the sentence imposed. Michigan’s "lifer law” allows any prison inmate under a sentence of life or for a term of years, other than those who have been convicted of first-degree murder or of a major controlled substance offense, to be considered for parole after serving ten calendar years of his or her sentence. MCL 791.234(4); MSA 28.2304(4). In 1978, the electorate approved "Proposal b,” now codified at MCL 791.233b; MSA 28.2303(3), which modified the lifer law. Inmates serving indeterminate sentences for any one of more than eighty crimes enumerated in the statute are no longer eligible for parole until the minimum term is served less any time earned in disciplinary credits under MCL 800.33; MSA 28.1403. In People v Johnson, 421 Mich 494; 364 NW2d 654 (1984), the Supreme Court expressly ruled that Proposal b does not apply to life sentences. Thus, if inmates James Crawford and Charles Hurst had received life sentences, they would each have been eligible for parole consideration after serving only the first ten years of their sentences. Under the sentences actually imposed, Crawford abides eighty years and Hurst forty years, minus whatever time they earn in disciplinary credits, before their names appear on a list of candidates for parole consideration. To repeat, the actual minimum term which must be served under Proposal B may now be reduced by time earned in disciplinary credits. The amount by which a sentence may be reduced under MCL 800.33; MSA 28.1403 can be significant, further complicating the attempt to pre cisely calculate the sentences we are reviewing. Moreover, Proposal B inmates may also benefit from early releases under the Prison Overcrowding Emergency Powers Act, MCL 800.71 et seq.; MSA 28.1437 (1) et seq., although we have expressly held that sentencing courts may not consider this possibility as a factor in determining individual sentences. See People v Humble, 146 Mich App 198; 379 NW2d 422 (1985), People v Lundy, 145 Mich App 847; 378 NW2d 622 (1985), and People v Fleming, 142 Mich App 119, 125; 369 NW2d 499 (1985). Remarking on this confusion and uncertainty is an article published in the Detroit Free Press on June 23, 1985, section b, page 5, which suggests that statutes and case law are not strictly adhered to by the Department of Corrections which follows a different star. Apparently, an inmate, who has been convicted of Proposal B offenses and sentenced to a minimum and maximum term of years, is nevertheless considered by the Department of Corrections for parole after serving only ten years of the actual minimum sentence, unless that inmate has been convicted of first-degree murder or a major controlled substance offense. This, if true, conflicts with the codification of Proposal B and the Supreme Court’s opinion in People v Johnson, supra. Against this backdrop, we find ourselves having to decide whether Hurst’s sentences of from forty to eighty years are excessive. If defendant’s forty-year minimum sentences mean that he will perforce spend the next forty years of his life behind bars, then our consciences are shocked. If a long termer must serve forty or eighty calendar years while his lifer counterpart, eligible for parole consideration in ten years, serves considerably less, then what is endangered is the entire predicate for the sentencing guidelines’ endeavor to narrow the disparity among sentences. We are indecisive about whether to affirm defendant’s sentences because of the uncertainty about what they precisely entail. We agree, however, with the observation made in People v Fleming, supra, p 126, that the courts of this state "should be mindful of the ultimate effect” of any sentence fashioned and, we would add, reviewed. For the lack of an alternative remedy, we vacate defendant’s sentences and remand this case to the trial court for an evidentiary hearing and resentencing. At the hearing on remand, the prosecutor and the Probation Department shall produce evidence as to the practices and policies of the Department of Corrections regarding parole eligibility. In particular, we want to know whether the Department of Corrections allows defendants who have been convicted of Proposal B offenses and sentenced to terms of years to be considered for parole after serving the first ten years of their sentences. Further inquiry should be made as to whether there are any other differences accorded inmates who have been sentenced to life on a Proposal B offense as opposed to inmates who have been sentenced to lengthy terms of years on a Proposal B offense. It’s time we had a record to review of how the Department of Corrections actually implements a sentence order, so that our review of those sentences will have some meaning. The Attorney General is responsible for the supervision of all prosecutors in this state. MCL 14.30; MSA 3.183, In re Watson, 293 Mich 263; 291 NW 652 (1940), and People v Karalla, 35 Mich App 541; 192 NW2d 676 (1971), lv den 386 Mich 765 (1971). We therefore direct the Attorney General to assist the Wayne County Prosecutor at the hearing on remand in whatever way necessary to facilitate the production of information relevant to the sentencing issues. We further invite the Attorney General to appear in this action as amicus curiae for the Department of Corrections. Following the hearing on remand, the trial court shall resentence the defendant and articulate on the record its reasons for choosing the sentences imposed. Hearing on remand shall be commenced within sixty days and concluded with dispatch. Defendant’s convictions are affirmed and the case is remanded for further sentencing proceedings as described herein. We retain jurisdiction. As originally approved and codified, Proposal B required that the full minimum term be served undiminished by reductions for "good time, special good time, or special parole.” In 1982, the statute was amended so as to allow for minimum sentence reductions according to disciplinary credits earned. The statute provides a scheme whereby the longer the sentence to be served, the more days per month may be earned in good time: (2) Except as provided in subsections (3), (4), and (5), a convict who does not have an infraction of the rules of the prison or a violation of the laws of this state recorded against him shall receive a reduction from his sentence as follows: (a) During the first and second years of his sentence, 5 days for each month. (b) During the third and fourth years, 6 days for each month. (c) During the fifth and sixth years, 7 days for each month. (d) During the seventh, eighth, and ninth years, 9 days for each month. (e) During the tenth, eleventh, twelfth, thirteenth, and fourteenth years, 10 days for each month. (f) During the fifteenth, sixteenth, seventeenth, eighteenth, and nineteenth years, 12 days for each month. (g) From and including the twentieth year, up to and including the period fixed for the expiration of the sentence, 15 days for each month. [MCL 800.33; MSA 28.1403.] The trial court described the guidelines for this crime as "woefully inadequate.” He also took a broadside at the guidelines: Why they’re there is, I suppose, for others to explain. I mean that in the sense that apparently either someone doesn’t have enough faith in the judges of this state in terms of their sentences, or whether they want all of us to just in effect march in a like step. We answer the trial court’s rhetorical question this way. We have far more confidence in the trial judge’s fashioning a proper sentence than in our own ability to review it. However, we are irrevocably committed to the proposition that judges make mistakes. Not only Appeals Court Judges — all judges. If we are properly committed to reduce or minimize sentence disparity, and we think we are, then we have to insist that the trial judge provide a reasonably specific explanation as to how the guidelines are inadequate or why the sentence in a particular case should not reflect the sentencing practices of the state’s trial judges. It appears to us that this is such a case.

Per Curiam. In a bench trial in Detroit Recorder’s Court, defendant was found guilty of felonious assault by means of a shotgun as a result of an incident on March 23, 1984. The complainant went to his brother’s house with a wrecker to tow a disabled car away and, after he crawled out from under the car and was hooking up the wrecker, he heard defendant swearing at him and also saw defendant in defendant’s doorway on the porch with a shotgun, which was racked and pointed at the complainant. Defendant testified that the complainant had pulled the tow truck up into his driveway and he believed that the complainant was trying to take what turned out to be the complainant’s brother’s car. He claimed the complainant swore at him and made what appeared to be a threatening gesture, so he grabbed a shotgun but denied pointing it at the complainant. The issue in this case arises as a result of the trial court’s indicating, after the testimony had been presented by both parties, that it wanted to question a witness, Anita Turner, who had earlier been waived by the parties but who had been listed as a res gestae witness. The court allowed the prosecutor to reopen the case because there were two conflicting versions of the testimony and the court did not know what to believe. The case was continued for a few days to allow the witness to be brought in and, at that time, defense counsel objected to the trial court’s calling of the witness, stating that both parties had already rested and that the witness was not indorsed on the information. Defendant further claimed complete surprise. The trial court permitted defense counsel to have a recess to talk to the witness if he had not already had the opportunity to do so. The witness was called and testified that, on the morning in question, she heard people swearing and looked out the window. She saw two men standing by a tow truck, and the man on the passenger side was talking to someone in front of him, but she could not see who it was. She came downstairs then and went out the door, acting like she was getting the mail. At this point, she saw defendant on the porch with a rifle, so she ran to the telephone to call the police. On November 1, 1984, the trial court found defendant guilty of felonious assault and, on December 11, 1984, sentenced defendant to five years probation, with the first year in a halfway house. Defendant appeals as of right. Defendant claims that the trial court committed prejudicial and reversible error in calling a res gestae witness after both sides had rested when the court was not convinced beyond a reasonable doubt as to the guilt of the defendant, but does not seem to raise a constitutional question. The prosecutor argues that, under MRE 614, a trial court is permitted to call and interrogate witnesses. While our research has not indicated a case exactly like this where both parties had rested, we find a number of earlier cases permitting the trial court to allow reopening of the proofs on the prosecutor’s motion for proof of a necessary element omitted from the case-in-chief. See People v Baker, 332 Mich 320, 324-325; 51 NW2d 240 (1952), overruled on other grounds in People v Rios, 386 Mich 172, 175; 191 NW2d 297 (1971), where the Supreme Court upheld the right of the people to reopen the case to permit a witness to testify relative to an element that had not been presented in the case-in-chief. The defendant in that case had moved for a directed verdict of not guilty because of the error. The Court that: It is the rule in criminal cases that the trial court in the exercise of sound discretion may reopen a case for the purpose of admitting testimony in behalf of either the prosecution or the defense. See People v Blake, 157 Mich 533 [122 NW 113 (1909)]; People v Chimovitz, 237 Mich 247 [211 NW 650 (1927)]; and People v Eger, 299 Mich 49 [299 NW 803 (1941)]. Though many of the cases are civil cases, the case law seems to be that the reopening of a case to receive additional evidence is within the sound discretion of the trial court and will not be interferred with on appeal except for abuse of discretion. In 75 Am Jur 2d, Trial, § 153, p 243, it is said: Courts have the power, even after a verdict and’ judgment, to reopen a case to receive proof of an incontrovertable document, omitted through inadvertence or mistake. Once the evidence has been closed, a case will be reopened to permit a party to introduce further expert evidence only under very extraordinary circumstances and for good cause. The same annotation at § 158, p 246, states: The trial judge possesses wide discretionary powers relative to the reopening of a criminal case for the introduction of further evidence after the parties have rested. In the trial judge’s discretion, a criminal case may be reopened for the reception of additional evidence after the case has been submitted to the jury and before their retirement to deliberate on their verdict, and it lies within the sound discretion of the trial court to reopen a criminal case for the reception of additional evi dence even after the jury have retired to deliberate on their verdict.[ ] The people argue that, under MRE 614, a trial judge is permitted to call and interrogate witnesses. Plaintiff also notes that a trial judge may examine witnesses and call witnesses not called by either party. State Bar Grievance Administrator v Jaques, 401 Mich 516, 536; 258 NW2d 443 (1977), vacated on other grounds, 436 US 952; 98 S Ct 3063; 57 L Ed 2d 1118 (1978), 403 Mich 956 (1978). We have been unable to find any discussion under MRE 614 relative to the issue in this case, and most of the discussion seems to be dealt with under FRE 614, which is identical to MRE 614. See 3 Orfield, Criminal Procedure Under the Federal Rules, § 26:167, p 462, which states: Some American cases have suggested that in some cases the judge in the interest of justice, may have a duty as well as the power to call witnesses, and may be reversed if he fails to do so. But the federal appellate courts have been unwilling to reverse on this ground. They hold that the exercise of the right to call a court’s witness is a discretionary matter and that only for an abuse of that discretion resulting in prejudice to the defendant will a trial court be adjudged to be in error and a conviction reversed.”[ ] [Citations omitted.] While the issue in this case does not deal with the calling of an expert witness, this Court in People v Fisher, 87 Mich App 350, 354; 274 NW2d 788 (1978), dealt with the court’s sua sponte call ing of an expert to testify concerning a claim of insanity as a defense in that case. The Court, quoting People v Dickerson, 164 Mich 148; 129 NW2d 199 (1910), indicated that, prior to the adoption of the Michigan Rules of Evidence, the court should not be involved in the selecting and appointing of witnesses, which would entirely change the character of criminal procedure and would seriously endanger safeguards under the constitution. The Court said in Fisher that, though prior to the adoption of MRE 706 the court was not permitted to call expert witnesses, MRE 706 clearly would allow such a procedure. In this case no constitutional question has been properly raised, and the trial judge very carefully indicated that defense counsel should have an opportunity to talk with the witness before the witness testified. The record further indicates that the witness had been indorsed but was waived by both sides, so defendant cannot now claim surprise which denied him a fair trial. Though MRE 614(c) says that "[objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present,” MRE 614(a) does not contain a limitation as to the court’s calling of witnesses only in a jury trial, and we cannot read the rule as limiting it solely to jury trials. We find that no error has been commited by the trial judge in this case. Affirmed. See also Anno: Court’s witnesses (other than expert) in state criminal prosecution, 16 ALR4th 352. There appears to be a split of authority, and no Michigan cases are cited. See Smith v United States, 331 F2d 265 (CA 8, 1964), cert den 379 US 824; 85 S Ct 49; 13 L Ed 2d 34 (1964), reh den 379 US 940; 85 S Ct 321; 13 L Ed 2d 350 (1964); Estrella-Ortega v United States, 423 F2d 509 (CA 9,1970); United States v Wilson, 447 F2d 1 (CA 9, 1971).

Per Curiam. On January 4, 1985, defendant entered a plea of guilty to a charge of felonious driving, MCL 752.191; MSA 28.661. At the plea-taking proceeding he stated that he fled when police either stopped him or attempted to stop him; that he "drove crazily,” reaching speeds of one hundred miles per hour and going through stop signs and red lights; and that he eventually "wrecked his car,” causing injuries to his passenger, Dickie Leeland Rider. Defendant was released on bond pending his sentencing date of April 17, 1985. Defendant failed to appear on that date. He was returned to Gene-see County for sentencing on October 23, 1985, after he had been sentenced to imprisonment in another county on an unrelated charge. In this case, defendant was sentenced to from sixteen months to twenty-four months imprisonment, to run consecutively to the sentence that defendant was already serving. Defendant appeals from his sentence as of right. Defendant maintains that his sentence should shock the conscience of this Court under the standard enunciated in People v Coles, 417 Mich 523; 339 NW2d 440 (1983). He argues that the sentence was excessive as evidenced by a comparison to what the minimum range for an assault conviction would be under the sentencing guidelines (alleg edly, three months to twelve months). Moreover, defendant avers that the fact that the sentence was consecutive should have militated in favor of a shorter sentence. Finally, he maintains that he should not have been sentenced to prison. The recommended minimum sentencing range applicable to an assault conviction is inapposite to the facts of this case. The sentencing guidelines do not apply to felonious driving. Moreover, there is no instruction or suggestion in the Sentencing Guidelines Manual that the guidelines should be applied by analogizing to a similar crime when the guidelines do not specifically apply to the crime at issue. Indeed, the manual states that a Sentencing Information Report need only be completed for crimes to which the guidelines apply. Sentencing Guidelines Manual, Tab 1, I.A.I. Accordingly, we find no indication that defendant’s sentence was excessive based on a deviation from the sentencing guidelines. We also reject defendant’s argument regarding consecutive sentencing. In the present case, the trial court recognized that it was authorized to make defendant’s sentence concurrent or consecutive. However, the court made the sentence consecutive, explaining that it thought defendant needed "deep-seeded [sic] counseling” and did not believe that such counseling could be adequately rendered in one year’s time, the length of the defendant’s unrelated sentence. Given this stated reason, we find no merit in defendant’s contention that the fact that the sentence was made consecutive provided reason for making the sentence shorter. Defendant also suggests that he should not have been sentenced to prison, but that he should "have been given a keeper of some sort.” Presumably, defendant means that he should have been sentenced to a less restrictive setting. In support of this contention, he points to facts allegedly contained in his presentence investigation report which has not been included in the record on appeal. However, assuming that the report does state that defendant has a schizophrenia personality disorder, a brain tumor and a dependency on drugs, we find no error in the trial court’s decision to sentence defendant to imprisonment. Defendant does not indicate that he would receive inadequate treatment for these conditions in prison. Moreover, given the defendant’s prior failure to appear for sentencing while out on bond, and the fact that the present conviction arose out of an instance where he was fleeing police, we can find no evidence that the trial court abused its discretion in opting against a less restrictive setting. Affirmed.

D. F. Walsh, J. Capitol City Lodge No. 141, Fraternal Order of Police, Non-Supervisory Division (the union) represents a collective bargaining unit which includes Ingham County jail security officers. When contract negotiations between the union and the Ingham County Board of Commissioners and the Ingham County Sheriff (the county) failed to result in resolution of disputed matters, the union filed with the Michigan Employment Relations Commission a petition for arbitration under 1969 PA 312, MCL 423.231 et seq.; MSA 17.455(31) et seq. (Act 312). The county responded with a motion to exclude the jail security officers from Act 312 arbitration. Following an evidentiary hearing, the merc determined that the conditions of employment of the Ingham County jail security officers are to be determined by arbitration under Act 312. The county appeals. Act 312 provides for compulsory, binding interest arbitration of labor disputes in public police and fire departments. "Public police and fire departments” subject to Act 312 include "any department of a city, county, village, or township having employees engaged as policemen, or in fire fighting or subject to the hazards thereof.” MCL 423.232(1); MSA 17.455(32)(1). The statute reflects the Legislature’s concern that employees of public police and fire departments, who provide vital services to their communities and who are prohibited by law from striking, have a binding procedure for resolution of labor disputes which is more expeditious, more effective and less expensive than courts. MCL 423.231; MSA 17.455(31); Ottawa Co v Jaklinski, 423 Mich 1, 14; 377 NW2d 668 (1985); Metropolitan Council No 23, AFSCME v Oakland Co Prosecutor, 409 Mich 299; 294 NW2d 578 (1980). The issue presented in the instant case is whether the Ingham County jail security officers come within the purview of Act 312. In Metropolitan Council No 23, AFSCME v Oakland Co Prosecutor, supra, p 335, a Supreme Court plurality set forth two conditions requisite to invocation of Act 312: First, the particular complainant employee must be subject to the hazards of police work .... Second, the interested department/employer must be a critical-service county department engaging such complainant employees and having as its principal function the promotion of the public safety, order and welfare so that a work stoppage in that department would threaten community safety. The Court ruled that investigators employed by the Oakland County Prosecutor’s Department were subject to the hazards of police work but were nonetheless outside the purview of Act 312 since the prosecutor’s department was not a criti cal-service "public police department” 409 Mich 336. Justice Ryan, in his concurring opinion, concluded that the investigators, "whose strike would [not] be likely to cause an imminent and serious threat to public safety,” were not intended by the Legislature to come within the provisions of Act 312. 409 Mich 337-338. In this case, the merc found that the two-pronged test set forth in Metropolitan Council No 23, AFSCME v Oakland Co Prosecutor, supra, had been satisfied. The merc decision can be reversed only if it is contrary to law or unsupported by competent, material and substantial evidence. 409 Mich 330-331; Const 1963, art 6, § 28. We are persuaded that error requiring reversal occurred in this case. Assuming arguendo that the Ingham County jail security officers are subject to the hazards of police work, review of the record discloses an absence of competent, material and substantial evidence supporting a finding that the second prong of the test has been satisfied. The merc finding included the following: If there should be a strike among the jail security officers, the testimony on the record indicated that through decreasing sheriff department activities deputies could be put into the jail for the purpose of maintaining security. Also, the under-sheriff indicated that substitutes for the jail security officers could be hired in case of a strike by the jail security officers. The commission concluded that the fact that replacements for the jail security officers could be found in the case of a strike did not disqualify the officers from Act 312 coverage. "[T]he use of such replacements,” according to the commission, "would clearly undermine morale and efficient operations of the sheriffs department.” The commission did not discuss whether a strike by the jail security officers would threaten community safety. In Metropolitan Council No 23, AFSCME, supra, the Supreme Court plurality identified the legislative intent of Act 312 as prevention of imminent, serious threat to the public order, safety and welfare and preservation of the high morale and efficient operation of critical-service police and fire departments. 409 Mich 325. Under the plurality opinion, however, , and under Justice Ryan’s concurring opinion, a finding that a strike would threaten public safety is prerequisite to Act 312 coverage. 409 Mich 311, 337-338. At the evidentiary hearing in this matter, both the Ingham County sheriff and undersheriff testified that a strike by the jail security officers would pose no threat to community safety. Sheriff Allan Davis testified that the jail could be operated adequately if all of the jail security officers went on strike. Undersheriff Elliott Moore testified that law enforcement officers and command officers could be taken from road patrol and other duties to take over the duties of striking jail security officers. According to the undersheriff, adequate replacements for striking jail security officers, who are not required to be certified, could be hired within three to five days. The undersheriff also testified that, in the event of a strike, prisoners could be transferred to other jails. The union argues that replacement of striking jail security officers with road patrol and other deputies would threaten the safety of Ingham County residents by diminishing the available personnel on road patrol and in other areas of law enforcement. We agree with this Court’s rejection of a similar argument in Lincoln Park Detention Officers v City of Lincoln Park, 76 Mich App 358, 365; 256 NW2d 593 (1977): Although it can be argued that a strike by noncritical police department employees could burden police officers with nonemergency duties, thereby adversely affecting the operation of the entire department and possible [sic] causing indirect harm to the public due to weaker patrols or overworked officers, we do not think that the act was meant to be so all-encompassing. Work stoppages by almost any group of public employees could theoretically cause an extra burden of the police department. For example, a strike by street and highway personnel could cause defective traffic lights to become unreported and force some police officers to shift to traffic directing duties thereby weakening other sections of the police force. The record does not contain competent, material and substantial evidence that a strike by the Ingham County jail security officers would pose a threat to community safety. On the authority of Metropolitan Council No 23, AFSCME v Oakland Co Prosecutor, we hold that Act 312 arbitration is not available to them. See also Local No 214, Teamsters v Detroit (On Remand), 103 Mich App 782; 303 NW2d 892 (1981). Reversed. No costs, a public question being involved. But see MCL 791.501 et seq.; MSA 28.2355(1) et seq., the Correctional Officers’ Training Act. Standards and requirements for certification, recertification and decertification of local correctional officers have yet to be issued by the Correctional Officer’s Training Council. MCL 791.514; MSA 28.2344(14). We express no opinion as to the effect, if any, such standards and requirements may have on resolution of the issue presented in this case.

R. B. Burns, P.J. Defendant appeals following his January 17, 1985, plea-based conviction for second-degree murder. MCL 750.317; MSA 28.549. He was sentenced to serve from forty to sixty years. He now appeals and we affirm. Defendant first requests us to determine whether he will be eligible for parole after serving ten calendar years of his sentence. MCL 791.234(4); MSA 28.2304(4), known as the "lifer law,” provides in pertinent part as follows: A prisoner under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10 calendar years of the sentence is subject to the jurisdiction of the parole board and may be released on parole by the parole board .... In People v Johnson, 421 Mich 494; 364 NW2d 654 (1984), the Supreme Court held that, while the above statute continued to apply to nonmandatory life terms, Proposal b, MCL 791.233b; MSA 28.2303(3), continues to apply to indeterminate sentences: We hold that Proposal b applies only to indeterminate sentences. Its express provisions are binding on the parole board, and the board may not release on parole, before the expiration of the minimum term fixed by the sentencing judge, any person given an indeterminate sentence for the crimes specified after the proposal’s effective date. It has no application to a fixed or life sentence. [421 Mich 498.] The essence of defendant’s argument is that he should come within the provisions of the lifer law since he entered into his plea bargain with the belief that he would be eligible for parole after ten years at the most. However, a review of the facts of this case and the case law as it existed on January 17, 1985, leads us to conclude that defendant had no reason to reasonably entertain such a belief. A review of the plea transcript reveals no statement by defendant or defense counsel that defendant’s plea was predicated on the belief that the lifer law would apply to any indeterminate sentence. Moreover, the trial court did specifically inform defendant that second-degree murder was subject to Proposal b. We conclude that defendant’s plea bargain was not based upon the belief that the lifer law would apply to any indeterminate sentence imposed on defendant. Since the lifer law was not a basis of defendant’s plea bargain, there is no reason to conclude that defendant should be eligible for parole after ten years. Before moving to the next issue, we would like to briefly dismiss defendant’s argument concerning whether Johnson should only be applied prospectively. There is no question here whether Johnson should have prospective or retrospective effect because Johnson did not change any preexisting interpretation of the law. Rather, Johnson represents an initial interpretation by the Supreme Court of a statutory question, namely the effect of Proposal b on the lifer law. We hold that indeterminate sentences subject to Proposal b are not affected by the lifer law. Next, defendant seeks appellate review of the trial court’s denial of a motion to suppress evidence, namely an inculpatory statement made by defendant while in custody. Defendant argues the issue is reviewable despite his guilty plea, citing People v Alvin Johnson, 396 Mich 424; 240 NW2d 729 (1976). We disagree. In People v Reid, 420 Mich 326, 337; 362 NW2d 655 (1984), the Supreme Court established the requirements for raising suppression issues following a guilty plea: In sum, we hold that a defendant in a criminal case may, after pleading guilty, appeal a decision denying a motion to suppress evidence where, as here, the defendant could not be prosecuted if his claim that a constitutional right against unreasonable search and seizure was violated is sustained and the defendant, the prosecutor, and the judge have agreed to the conditional plea. If they so agree, the defendant may offer a conditional plea of guilty, and, after his conviction on such a plea, he may appeal from the adverse ruling on his search and seizure claim. If the defendant’s claim is sustained on appeal, he may withdraw his plea of guilty. A review of the plea transcript in this case indicates that the plea was not conditional. Accordingly, defendant waived all suppression issues. Defendant also argues that the magistrate abused his discretion in binding defendant over. See People v Doss, 406 Mich 90; 276 NW2d 9 (1979). We have reviewed the issue and find no abuse of discretion. Finally, defendant argues that his sentence should shock our judicial conscience. People v Coles, 417 Mich 523; 339 NW2d 440 (1983). It does not. We do note that the sentence was within the sentencing guidelines recommendation of twelve years to life. Affirmed. We also wish to reject defendant’s argument that, were we to vacate his plea, we should remand this case for trial on a second-degree murder charge, rather than on the original first-degree murder charge. Defendant’s request is contrary to MCR 6.101(F)(7)(d), which provides that, if a defendant is permitted to withdraw his guilty plea, he may be brought to trial on the original charge. Defendant cannot have his plea set aside and still face no greater charge than that to which he pled. Were we to set aside the plea, defendant would face trial on the original first-degree murder charge and a sentence of life in prison without parole. MCL 750.316; MSA 28.548 and MCL 791.234; MSA 28.2304. Defendant, however, does not wish this since, in his prayer for relief, he states that, if this Court insists on a remand for trial on first-degree murder, "Defendant-Appellant requests that the remand not be ordered.” However, as noted above, defendant cannot have his cake and eat it too. In any event, we find no need for a remand.

Per Curiam. Defendant was charged with kidnapping and appeals as of right from a jury trial conviction for attempted kidnapping, MCL 750.349; MSA 28.581 and MCL 750.92; MSA 28.287. Defendant was sentenced to from three to five years in prison. This appeal of his conviction and sentence raises six issues. Defendant first challenges the sufficiency of the evidence adduced at trial to sustain his conviction. On sufficiency of evidence claims, we review the evidence in a light most favorable to the prosecutor to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Vicuna, 141 Mich App 486, 495; 367 NW2d 887 (1985); People v Hampton, 407 Mich 354; 285 NW2d 284 (1979), cert den 449 US 885 (1980). To prove the crime of attempt the evidence must show (1) the specific intent to commit a crime and (2) an overt act going beyond mere preparation toward committing the crime. People v Coleman, 350 Mich 268; 86 NW2d 281 (1957); People v Frost, 148 Mich App 773, 776; 384 NW2d 790 (1985). The parties agree that the elements of kidnapping under the particular facts at hand are: (1) forcible confinement or imprisonment, (2) against the victim’s will, maliciously or without authority, and (3) with asportation. People v Wesley, 421 Mich 375, 388; 365 NW2d 692 (1984). The evidence showed that fourteen-year-old Stephanie Vandenbout and her eleven-year-old sister Sarah were walking along M-75 returning from a swim when they noticed defendant following them. Stephanie testified that defendant began walking faster and when he caught up to her he grabbed her arm and dragged her into the woods. Defendant was holding a gun in front of her, but did not point it at her, and he told her to be quiet. Stephanie began screaming and attempting to get away by kicking and hitting the defendant. About seventy-five feet into the woods defendant abruptly let Stephanie go, and she ran back to the highway, where her sister and a passerby met her. She estimated the incident took less than one minute. Defendant argues that the evidence was not sufficient to prove that he specifically intended to commit an attempted kidnapping. He submits that his letting the victim go after such a short period of time shows the lack of specific intent. He also points to the lack of evidence of planning and motive and suggests that only speculation supports a finding of specific intent. Defendant made two statements shortly after his arrest which were read to the jury. In one statement he admitted he intended to take the girl farther into the woods. Defendant also testified that he grabbed Stephanie when she started screaming and that he did not intend to confine her, he was just pushing her. We disagree that a jury could not have found the specific intent to kidnap from these facts. Defendant’s use of physical force to take the girl into the woods and his use of the gun (which proved to be a toy) to scare her are sufficient evidence of his intent. From his actions the jury could have reasonably concluded that he intended to forcibly confine or imprison his victim against her will. Defendant also contends that the evidence shows that he realized that the incident had gotten carried away and blown out of proportion and that even if he once had criminal intent to kidnap he later abandoned his attempt. This Court recognized the defense of voluntary abandonment to a charge of attempted kidnapping in People v Kimball, 109 Mich App 273; 311 NW2d 343 (1981); modified 412 Mich 890; 313 NW2d 285 (1981). Kimball held that the burden is on the defendant to prove by a preponderance of the evidence that he has voluntarily and completely abandoned his criminal purpose. The Court pointed out what did not constitute "voluntary” abandonment: Abandonment is not "voluntary” when the defendant fails to complete the attempted crime because of unanticipated difficulties, unexpected resistance, or circumstances which increase the probability of detention [sic] or apprehension. Nor is the abandonment "voluntary” when the defendant fails to consummate the attempted offense after deciding to postpone the criminal conduct until another time or to substitute another victim or another but similar objective. [109 Mich App 286-287.] Under the present circumstances, defendant’s abandonment was not voluntary. In defendant’s confession, he stated that he saw a flash of something, apparently believed someone was coming, and let the victim go. Defendant’s actions in going to the lake and hiding under a dock reinforced the idea that he abandoned his attempt because he thought someone was coming and he feared getting caught. According to Kimball, circumstances which increase the probability of apprehension negate the voluntariness of abandonment. Defendant next asserts that the trial court erred in admitting a real gun owned by his stepfather which the police seized from a locked cabinet in his stepfather’s home where defendant had been staying. Defendant admitted showing a toy gun to Stephanie. He told the police where he had hidden the toy gun, which they recovered, and Stephanie testified that the toy gun looked like the gun defendant showed her. However, the prosecutor claimed the real gun was relevant to prove the toy gun looked like a real gun to Stephanie and the trial court admitted it for this limited purpose. We conclude that admission of the real gun was error. Evidence which is not relevant is not admissible. MRE 402. Although the prosecutor claimed the real gun was relevant to prove the toy gun looked like a real gun, it was unnecessary to use defendant’s stepfather’s gun and to argue during closing argument that defendant could have used either gun. The presence of a weapon is not an element of kidnapping. Nonetheless, although the real gun was irrelevant, and its admission error, we find the error harmless. Even if the jury believed from this irrelevant evidence that defendant had a real gun at the time of the offense, we are unconvinced that any juror might have voted to acquit defen dant absent this evidence. People v Hudgins, 125 Mich App 140, 145; 336 NW2d 241 (1983). Next, we address whether the trial court’s jury instructions were deficient because the instructions were inadequate to inform the jury that attempted kidnapping is a specific intent crime and because the judge failed to instruct sua sponte on the defense of intoxication and voluntary abandonment. As to the intoxication instruction, defense counsel never argued at trial that defendant was impaired by the alcohol and marijuana defendant admitted he consumed prior to the incident. Nor did he ever argue that he intended to kidnap Stephanie but abandoned that intent. When the defendant presents no evidence relating to a defense, the trial court is not expected to sua sponte instruct the jury regarding those defenses. People v Freeman, 149 Mich App 119, 126; 385 NW2d 617 (1985). Likewise, we disagree with defendant’s argument that the trial court failed to instruct that attempted kidnapping is a specific intent crime. While kidnapping is not a specific intent crime, attempted kidnapping is a specific intent crime. People v Wesley, supra; People v Joeseype Johnson, 407 Mich 196, 239; 284 NW2d 718 (1979). The trial court did give the jury the appropriate elements of attempt and gave a specific intent instruction. However, in doing so the court erroneously referred to specific intent in relation to the kidnapping charge itself. Nonetheless, we find that the instruction as given, when read as a whole, contained all the information required by the jury to return a proper verdict. People v Freeman, supra. Because they are closely related, we address in tandem two additional assignments of error. Throughout the trial, defense counsel suggested that the proofs would not support a conviction for kidnapping or attempted kidnapping; that at most defendant was guilty of assault and battery. Defendant himself admitted during his testimony that he had committed the crime of assault and battery. In instructing the jury, the court told the jurors that they should "consider whether the movement was for the purpose of kidnapping or whether it was a part of the crime of assault and battery.” The court also stated that it was defendant’s theory of the case that he had been "overcharged based on the facts presented” and "that any movement that took place was incidental to a lesser offense of Assault and Battery.” Nonetheless, defendant was not charged with assault and battery and the trial court did not give an assault and battery instruction. Defendant claims that trial counsel requested an instruction on the lesser-included offense of assault and battery during an in-chambers conference on instructions. Even though no instruction on assault and battery was given, counsel made no objection on the record and instead pronounced himself satisfied with the jury instructions. At one point during deliberation, the jury requested and received additional instruction on kidnapping and attempted kidnapping. Later the jury informed the court it could not reach a verdict and it was given the deadlock instruction, after which it returned the verdict of guilty of attempted kidnapping. Defendant now asserts that the trial court erred by denying an in-chambers request for an instruction on the lesser offense of assault and battery. Defendant alternatively argues that if trial counsel failed to make a proper request, then the trial attorney seriously erred to the extent he was deprived of effective assistance of counsel. Because we are unable to determine from this record whether trial defense counsel did request the assault and battery instruction and because appellate counsel’s arguments do raise a question as to the adequacy of defendant’s representation at trial, we find it necessary to remand to the trial court for presentation of these issues. We so find because we are convinced that the instant facts met the requirements for the giving of instructions on a lesser-included misdemeanor as set forth in People v Stephens, 416 Mich 252, 261-265; 330 NW2d 675 (1982). If the defendant requested the instruction, it would have been appropriate for the trial court to give the instruction. The intent to kidnap was sufficiently in dispute so that the jury could have consistently found defendant innocent of the greater offense and guilty of the lesser included misdemeanor offense. People v Acosta, 143 Mich App 95, 102; 371 NW2d 484 (1985). If the jury believed the defendant had not intended to confine the victim but had committed some crime, it had no acceptable verdict. Defendant’s theory of the case was that he had only assaulted and battered the victim, never meaning to confine her except incidental to the assault and battery. However, if, on the other hand, defendant’s trial attorney failed to request the assault and battery instruction when his theory of the case was that defendant was guilty of nothing more than assault and battery, then a factual determination must be made by the trial court as to whether a serious mistake was made by defense counsel rendering his performance below that of a lawyer with ordinary skill and training in criminal law and depriv ing defendant of a reasonable chance of acquittal, or, in this case, conviction on the lesser included misdemeanor. People v Garcia, 398 Mich 250; 247 NW2d 547 (1976); Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Vicuna, supra, pp 496-498. Accordingly, pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), this case is remanded to the trial court for a hearing on defendant’s new trial motion. At that hearing, in addition to the issue of whether defendant’s trial counsel failed to request an assault and battery instruction, defendant may present testimony on his counsel’s failure to request intoxication and abandonment instructions. Defendant’s last issue challenges his sentence because the trial judge deviated from the sentencing guidelines but failed to articulate his departure reasons on the record. While the judge did explain his sentence departure on the Sentencing Information Report (sir) under departure reasons, we subscribe to the view that "departure reasons must be placed on the record in addition to the sir which has only the effect of placing them in the record.” People v Spalla, 147 Mich App 722, 727; 383 NW2d 105 (1985); People v Fleming, 142 Mich App 119, 123; 369 NW2d 499 (1985) lv gtd 424 Mich 877 (1986). Thus, in the event that on remand following the Ginther hearing the trial court denies defendant’s new trial motion, defendant should be resentenced and any departure reasons shall be specifically articulated on the record. Remanded for further proceedings consistent with this opinion. We recognize that on February 18, 1986, a panel of this Court denied defendant’s motion to remand on this same basis "for failure to persuade the Court of the necessity of a remand at this time.” We now find that remand is necessary.

Per Curiam. Defendant pled guilty to delivery of cocaine, MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a), possession with intent to deliver cocaine, MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a), two counts of assault with intent to murder, MCL 750.83; MSA 28.278, and felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to a term of five to twenty years on Count i, five to fifteen years on Counts ii, in, and iv, and two years for the felony-firearm. Defendant now claims that the trial court erred in taking defendant’s plea without first charging him with violation of his probation and granting him a probation revocation hearing. Defendant was not under probation; he was diverted from the criminal justice system pursuant to the Youthful Trainee Act (yta), MCL 762.11; MSA 28.853(11). MCL 762.12; MSA 28.853(12) provides as follows: The court of record, having jurisdiction over the criminal offense referred to in Section 1, may at any time terminate its consideration of the youth as a youthful trainee or, once having assigned the youth to the status of a youthful trainee, may at its discretion revoke such status at any time prior to the youth’s final release. [Emphasis added.] The yta is not the same as probation. When youthful trainee status is terminated, the defendant is entitled to a trial. In this case the defendant pled guilty to those crimes that led to his being placed on youthful trainee status. There was no error. Defendant also argues that no factual basis was established for conviction on the two counts of assault with intent to commit murder. After reviewing the record, we find that we disagree. . "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 defendant . . . .” Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975). See also People v Witt, 140 Mich App 365; 364 NW2d 692 (1985). However, even if a defendant denies an element of a crime, the trial court may properly accept the plea if an inculpatory inference can be drawn from what the defendant says. People v Bradford, 144 Mich App 416; 375 NW2d 764 (1985). Assault with intent to commit murder contains the following elements: (1) an assault, (2) with specific intent to murder, (3) which, if successful, would make the killing murder. People v Branner, 53 Mich App 541; 220 NW2d 183 (1974). Specific intent to kill is the only form of malice which supports the conviction of assault with intent to commit murder. People v Gjidoda, 140 Mich App 294; 364 NW2d 698 (1985). Intent to inflict great bodily harm or wanton and wilful disregard of the recklessness of one’s conduct is insufficient to support a conviction for assault with intent to commit murder. People v Taylor, 422 Mich 554; 375 NW2d 1 (1985). The colloquy between the court and the defendant transpired as follows: The Court: Now the next one. Apparently you assaulted two police officers, Derrick Anderson and Lamar Nowell, with a gun. Will you tell the Court what happened involving those? Defendant Cochran: I had a gun in my pocket and when they jumped out of the truck, I didn’t know who they was, and I ran from them and I shot. Shots were fired at me. The Court: Then what happened? Defendant Cochran: I just fled and I left the scene. The Court: Did you fire any shots? Defendant Cochran: Yes, sir, The Court: All right, you didn’t know whether they were holdup men or other drug— Defendant Cochran: Yes, sir. The Court: And you fired shots in the direction of the two of them? Defendant Cochran: Right; up in the air. The Court: What? Defendant Cochran: I fired one shot in the air. The Court: Well, didn’t you intend to kill them? Defendant Cochran: Yes, sir. The Court: All right, you had a handgun at the time you fired the shots? Defendant Cochran: Yes sir. We believe the above established a factual basis for assault with intent to commit murder. Although the defendant stated that he fired "into the air” he affirmatively stated that he intended to kill. A fair reading of the plea-taking transcript does indeed establish the requisite intent. Affirmed.

Per Curiam. Plaintiff appeals as of right from a July 8, 1985, order granting summary disposition and a July 17, 1985, order dismissing this negligent misrepresentation action. The trial court granted summary disposition based on plaintiffs failure to state a claim for which relief can be granted and/or the absence of a genuine issue of material fact such that defendants are entitled to judgment as a matter of law. MCR 2.116(C)(8) and (10). The trial court also granted summary disposition on the basis of the statute of limitations. MCR 2.116(C)(7). We affirm. Plaintiff alleges that in 1975, as part of the final endorsement closing of an FHA-insured mortgage loan, it sought reassurance that certain managing partners of Westland Towers Apartments had authority to consent to the extension of a letter of credit the bank had issued in favor of the partnership. Plaintiff was aware that a dispute had arisen among the partners. Some partners declined to participate in or sign documents relating to the closing, including a request for extension of the letter of credit’s expiration date. The partnership agreement was ambiguous concerning the authority of the managing partners to act without the concurrence of the other partners. Plaintiff bank sought and received an opinion letter from defendant Rodgers & Morgenstein (the law firm) acting as counsel for Westland Towers Apartments concerning the authority of the managing partners. The text of the opinion letter provided: Gentlemen: In connection with the execution of the documents pertaining to the Final Closing of the captioned Mortgage loan, you have requested our opinion as to the authority of the Managing Partners to execute the documents pertaining to same. I have reviewed the Westland Towers Apartments Articles of Partnership, dated June 9, 1972. Article 11 thereof specifically vests direct responsibility for the Management of the Partnership business in the Managing Partners, William B. Risman and Robert R. Risman. The execution of the closing documents and the actions taken by the Managing Partners to effect the final mortgage loan closing with J. M. Prentice Mortgage Company and the Department of Housing and Urban Development are normal and usual business functions for this type of partnership transaction, and are, therefore, in our opinion, within the authority vested in the Managing Partners by the aforementioned Partnership Agreement. The first amended complaint further alleged that the law firm breached its duty to exercise ordinary care and "a level of expertise equal to that customarily exercised by attorneys in the Metropolitan Detroit area when giving similar opinions when it negligently made and delivered the erroneous opinion.” It further alleged that the law firm’s opinion was issued recklessly, without any knowledge of its truth and as a positive asser tion with the intention that plaintiff should rely upon it. Defendant Horace J. Rodgers was retained by the partnership to interpret the partnership agreement when a dispute arose between two sets of individual partners before the final endorsement closing. Rodgers was asked to interpret the following apparently inconsistent provisions: 10. All contracts, agreements and other instruments to which the partnership may be a party shall be signed in the partnership name by any two of the following: William Risman, Robert Risman or Donald Horace, and Charles Granader or Harry Granader. 11. William Risman and Robert Risman are hereby designated as the managing partners in whom the parties hereto vest the direct responsibility for the management of the partnership business, including the right and power in their sole and uncontrolled discretion to ... (b) borrow money for the partnership upon such terms and conditions as they may deem necessary in the conduct of the partnership business, and evidence such borrowing by the execution and delivery in the name of and on behalf of the partnership of promissory notes and other evidence of indebtedness. According to the first amended complaint, a request to extend a letter of credit and the partnership’s promissory note to cover any advances made under the letter of credit was among the documents required to complete the final endorsement closing. It was further alleged that plaintiff extended its letter of credit and honored appropriate sight drafts presented to it. Further, when plaintiff demanded payment from the partnership, its individual partners, and the individual guaran tors of the partnership’s obligation, payment was refused. It is acknowledged that plaintiff possessed the partnership agreement and was aware of the apparent conflict between the pertinent provisions. Thus, these facts do not suggest an omission or concealment of facts from plaintiff by defendants. A motion for summary disposition for failure to state a claim upon which relief can be granted tests the legal sufficiency of the pleading with all well-pleaded facts accepted as true. Summary disposition is warranted only if the claim is so clearly unenforceable as a matter of law that no factual development could justify a right to recovery. Abel v Eli Lilly & Co, 418 Mich 311; 343 NW2d 164 (1984), reh den 419 Mich 1201 (1984), cert den 469 US 833; 105 S CT 123; 83 L Ed 2d 65 (1984) [interpreting GCR 1963, 117.2(1), the predecessor of MCR 2.116(C)(8)]. In contrast, a motion for summary disposition based upon the absence of a genuine issue of material fact tests the factual support for a claim or defense. Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972) [interpreting GCR 1963, 117.2(3), the predecessor of MCR 2.116(C)(10)]. The limited purpose of the motion is to determine whether a genuine issue of any material fact exists. Durant v Stahlin, 375 Mich 628; 135 NW2d 392 (1965). The court must consider the affidavits, pleadings, depositions, admissions and documentary evidence filed in the action or submitted by the parties. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). The court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Rizzo, supra. The legal issue presented is whether plaintiff has stated a cause of action for negligent misrepresentation based on the opinion letter received and its detrimental reliance thereon. The trial court said no and reasoned that the misrepresentation must be based upon a material misrepresentation of fact and not upon an opinion. We agree. Plaintiff does not cite and we find no legal authority in this jurisdiction presenting substantially similar circumstances to support plaintiff’s argument. Plaintiff attempts to analogize this case to Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), in which the Court held that a cause of action in tort for negligent misrepresentation, arising out of an abstracter’s contractual duty, runs to those persons an abstracter could reasonably foresee as relying upon the accuracy of the abstract. Williams, supra, p 22. The Court carefully noted that the cause of action was premised upon negligence in performing the title search, i.e., a misstatement of or a failure to include relevant items of record. Williams, supra, pp 21-22. The Court expressly stated that its decision did not convert an abstracter into a title insurer. Id. The Court noted that an abstracter was not responsible for a legal conclusion as to whether good title existed on the basis of the prepared abstract. Williams, supra, p 22, n 13. We do not accept the analogy, because a distinction must be made between an abstracter’s title search and the legal opinion issued in this case. The opinion of defendant Rodgers amounted to an expression of opinion in the exercise of professional judgment rendered upon facts (i.e., the part nership agreement provisions) fully disclosed and known to all. Unlike an abstract of title, the opinion did not constitute a summary of facts which could be checked against a record. A similar distinction between a fact statement and a legal opinion appears to have been made in Eisenberg v Gagnon, 766 F2d 770 (CA 3, 1985), cert den sub nom Wasserstrom v Eisenberg, — US —; 106 S Ct 342, 343; 88 L Ed 2d 290 (1985), a case on which plaintiff mistakenly relies. The plaintiffs in that case, two investors in two limited partnerships, alleged that the offering memoranda, prepared by the defendants, were false and misleading with respect to underlying facts, (i.e., coal reserves and the feasibility of coal recovery). The offering memoranda included a tax opinion written by the defendant attorney and issued under the name of his law firm. In an alleged misrepresentation, the tax opinion stated that the irs would allow the deduction of large advanced royalty payments by nonrecourse notes. Further, the memoranda contained a statement by the defendant accounting firm that the assumptions underlying the projections were "not unreasonable.” Eisenberg, supra, p 773. The plaintiffs alleged securities fraud and negligent misrepresentation, claiming that the defendant attorney had deceived them in a business transaction. In reversing the lower court’s order granting a judgment notwithstanding the verdict and reinstating the jury verdict against the defendants, the court concluded that the jury had sufficient evidence "to conclude that [the defendant attorney] negligently misrepresented the facts underlying the limited partnership in statements that were specifically intended for the benefit and guidance of a limited class of prospective investors, including plaintiffs.” Eisenberg, supra, p 780. Thus, the plaintiffs’ state-law claim of negligent misrepresentation rested upon misstatements of fact, and not an erroneous legal opinion. Likewise we reject plaintiff’s argument that its reliance upon the legal opinion was justifiable in light of defendant Rodgers’ professional expertise. This is not a situation in which plaintiff was without special knowledge or without the ability to interpret the partnership agreement through its own legal counsel. Thus, this case is distinguishable from the situation in which an ordinary person deals in reliance upon an attorney’s opinion on a point of law. Compare, Rosenberg v Cyrowski, 227 Mich 508; 198 NW 905 (1924). See, Prosser & Keeton, Torts (5th ed), § 109, pp 760-762. Plaintiff categorically states that the claim is not one for legal malpractice, yet it refers us to several cases from other jurisdictions in which claims of malpractice or negligence were raised. This decision should not be read as creating a special exception to Williams v Polgar, supra, for lawyers. Instead, we simply hold that no cause of action has been alleged by the circumstances presented here. In light of our disposition of this issue, we do not need to consider the remaining issue regarding the statute of limitations. Affirmed. Costs to appellee. The liability of the partnership, the individual partners and the individual guarantors to plaintiff is the subject of a related lawsuit, City National Bank of Detroit v Westland Towers Apartments, 152 Mich App 136; 393 NW2d 554 (1986). The lawsuit enjoys a lengthy history. An application for leave to appeal was filed in the Michigan Supreme Court on July 17,1986, for review of this Court’s decision.

Per Curiam. On September 30, 1983, defendant pled guilty to attempted forgery, MCL 750.248; MSA 28.445, MCL 750.92; MSA 28.287, and larceny from a building, MCL 750.360; MSA 28.592. In exchange the prosecutor agreed to dismiss one additional charge, as well as an habitual offender information. The prosecutor also agreed not to proceed with certain future cases in which defendant might admit involvement. Defendant failed to appear for his scheduled sentencing. On November 30, 1984, pursuant to a negotiated plea, defendant pled guilty to absconding a bond, MCL 750.199a; MSA 28.396(1), as follows: [The Prosecutor]: Yes, your Honor, the plea agreement is as follows:... if the defendant pleads guilty to [absconding] and continues his plea of guilty to [attempted forgery and larceny from a building], the People will dismiss files 84-4047, 84-4049, and 84-4050. Number one (1). Number two (2), we will not proceed against the defendant and an habitual offender. Number three (3) we will recommend concurrent sentences. Number four (4) the parties will agree that the defendant will be sentenced, assuming that’s alright with the Department of Corrections, for all three (3) files on December 28th. And the final part of the plea agreement is, if by December 28th, the date of sentence, he has not made full restitution as determined by the Probation Department, before the sentencing, for [the] files with which he is charged [i.e., the 3 dismissed as part of the absconding case, the attempted forgery and larceny cases, and the case dismissed as part of the plea taken on September 30, 1983], then there is no plea agree ment and the plea agreement is set aside and we can proceed against the defendant as if there were no plea agreement. There is no sentence recommendation, other than the sentences be concurrent and not consecutive. The Court: Alright, is that a complete and accurate statement of the plea agreement, [defense counsel]? [Defense Counsel]: Yes, it is, your Honor. The Court: And, Mr. Olsen, did you understand what . . . the prosecutor, just stated? Defendant: Yes, sir, I did. The Court: Do you understand it completely? Do you .understand that it involves dismissal of three (3) files? Defendant: Yes, sir. The Court: And it means that the prosecutor will not proceed against you as being a habitual offender, he’s recommending concurrent sentences on the two (2) charges to which you would be sentenced in September of '83, and this matter, the obsconding [sic] charge . . . he’s stating that if you do not make full restitution in all these six (6) files, by the time of sentences in the plea agreement is null and void. Do you understand that, Mr. Olsen? Defendant: Yes. The Court: Do you agree to that? Defendant: Yes. At sentencing, the prosecutor noted that defendant had not made restitution. The prosecutor did not move to reinstate the files he had. agreed to dismiss, but did recommend the imposition of consecutive sentences. Defendant’s offer of partial restitution was rejected. The court imposed sentences of from forty to sixty months and from twenty-four to forty-eight months imprisonment for the attempted forgery and larceny convictions, respectively to be served consecutively to a thirty-two to forty-eight month sentence for absconding. Defendant appeals as of right and requests this Court to amend his sentence to impose concurrent sentences or, alternatively, to remand to the sentencing court for such an amendment. We decline to do either and affirm. Defendant contends that he is entitled to specific performance of the prosecutor’s agreement to recommend concurrent sentences because the restitution requirement of his plea bargain was illegal and unenforceable. The fallacy in defendant’s argument is that the prosecutor did not order defendant to make restitution as part of the plea bargain. Payment of restitution was simply an agreed-upon condition precedent to the prosecutor’s obligation to perform as promised. When defendant failed to meet the condition, the prosecutor’s obligation to recommend concurrent sentencing ceased. At the time defendant entered into the plea bargain defendant knew better than anyone whether he had the ability to raise the money, and the risk he ran if he did not. Defendant will not now be heard to say that he should have made a better deal. Since defendant has failed to perform his undertakings under the plea agreement, he has no right to specific performance of the prosecutor’s agreement to recommend concurrent sentencing. Affirmed.

Sullivan, P.J. Defendant was convicted by a jury of resisting a police officer, MCL 750.479; MSA 28.747. He was sentenced to serve 365 days in jail, with credit given for fifty-three days already served. Defendant appeals as of right, raising a number of allegations of error, none of which require reversal. On July 12, 1984, Officer Judy Taylor of the Belding Police Department took a report from defendant’s wife that at ápproximately 9:00 p.m. that evening defendant had come to the house, threatened to get "the bitch,” produced a shotgun, blew off the doorknob, entered the house, blew off another doorknob, and entered further. Defendant’s wife escaped by leaving through a window, and defendant thereafter left the premises in a pickup truck owned by a Rob Tanner. Officer Taylor was also informed that defendant was under a court order to stay away from his wife. The neighboring City of Greenville Police Department was given this information and was requested to keep a lookout for the Tanner vehicle. Officer Thad Taylor located the vehicle behind a residence on North Irving Street in Greenville and then learned from the department that defendant was in a house three doors away. This latter house was owned by Mr. and Mrs. Robert Tate, defendant’s sister and brother-in-law. By 12:15 a.m., Officer Thad Taylor had proceeded to the Tate residence and was joined by two state troopers, a sheriff’s deputy, a Belding officer, and three other Greenville officers. Surrounding the home, the police, by use of a loudspeaker, instructed the occupants to come out unarmed. When nobody came out of the home, a phone call to the house was placed through dispatch. In reply to the phone call, Mrs. Tate came out of the house and informed the police that defendant was inside. Thereupon, Mr. Tate came out and asked the police to leave. At that point, the police informed Mr. Tate of the incident in Belding and of their intention to arrest defendant. During this conversation, Officer Jeffrey Brown looked through the open door, observed defendant lying on a sofa and began to enter the house. Mr. Tate tried to stop him, but was restrained by another officer. When inside, Officer Brown advised defendant that he was under arrest and defendant came off the sofa swinging. A physical struggle ensued, involving four officers, after which defendant was subdued and handcuffed. At the police station, defendant’s hands came out of the cuffs and another fight took place before defendant was once again physically restrained. It is uncontested that, although Officer Judy Taylor of the Belding Police Department had oral authorization for a warrant from the Ionia County Prosecutor, defendant was arrested without either a search or arrest warrant. i Defendant first contests the legality of his arrest, arguing he was improperly arrested in a third party’s home without a search warrant. Due to such alleged impropriety, defendant suggests the charges against him should have been dismissed. In reviewing this claim, the threshold question to be resolved is whether defendant lacked standing to object to the propriety of his arrest. At the hearing on defendant’s motion to quash in the lower court, the prosecution argued that defendant had no standing to raise this issue. The trial court ignored the issue of standing and simply rejected defendant’s claim on the basis that the presence of exigent circumstances obviated the need for a warrant. We believe that this course of action was unnecessary because we find that defendant did indeed lack standing to raise the issue. Before a defendant may attack the propriety of a search and seizure, such search and seizure must have infringed upon an interest protected by Const 1963, art 1, § 11, the provision which prohibits unreasonable searches and seizures. In making this determination, the court must decide, based upon the totality of the circumstances, whether the defendant had a reasonable expectation of privacy in the object of the search and seizure. People v Smith, 420 Mich 1, 28; 360 NW2d 841 (1984). In cases such as this, where defendant is arrested in the home of a third party, he will in most cases not have had a legitimate expectation of privacy in the premises and therefore will be unable to challenge the search. United States v Salvucci, 448 US 83; 100 S Ct 2547; 65 L Ed 2d 619 (1980); United States v Buckner, 717 F2d 297, 299 (CA 6, 1983). The fact that the entry may have violated the constitutional rights of the third-party homeowner has no effect on the defendant’s criminal conviction. United States v Payner, 447 US 727; 100 S Ct 2439; 65 L Ed 2d 468 (1980); United States v Buckner, supra, 717 F2d 300. Here, nothing in the record indicates that the defendant had a legitimate expectation of privacy in the Tates’ house. Although no testimony was presented at the pretrial motion, Mr. Tate testified at trial that defendant had not stayed there on a regular basis any time that week, nor any time after the night of the offense on a regular basis. Rather, defendant went to the Tate residence after the offense merely to get a ride to his own home. As both the Tates and defendant were drunk, they decided it would be best if defendant slept there until the following morning, when defendant would turn himself in to the police. Indeed, there are no facts other than his relationship to the Tates to establish that he had standing to challenge the entry of their house without a warrant. Under these circumstances, the trial court’s denial of defendant’s motion to quash was not reversible error. See, e.g., United States v Buckner, supra, 717 F2d 300. We also note that, even if defendant did have standing to and could successfully attack the validity of his arrest, the circuit court would not be divested of jurisdiction and defendant would not be entitled to dismissal of the charge. The sole remedy available to defendant is the suppression of evidence obtained from him following the illegal arrest. People v Burrill, 391 Mich 124, 133; 214 NW2d 823 (1974); People v Boykin, 119 Mich App 763, 765; 327 NW2d 351 (1982). Here, defendant does not argue that incriminating evidence was seized at the time of his arrest; thus, he is without a remedy. The trial court did not err in denying his motion to quash. ii Defendant’s next claim of error is that the trial court erred reversibly when it refused to instruct the jury on the element of exigent circumstances. He reasons that, since the lawfulness of the arrest is an element of the charged offense, the judge invaded the province of the jury by refusing to instruct the jury on the reasonableness of the arrest without a warrant and deprived defendant of his fundamental right to have all elements of a crime determined by the jury. Indeed, a lawful arrest is an element of the offense of resisting arrest, MCL 750.479; MSA 28.747; People v Landrie, 124 Mich App 480, 482; 335 NW2d 11 (1983). Thus, when a suspect is tried for resisting arrest, the lawfulness of an arrest, which is generally a question of law decided by the trial court, becomes a question of fact to be decided by the jury. People v Clarence Reed, 43 Mich App 51, 53; 203 NW2d 756 (1972). After a review of the record, we find that the trial judge adequately instructed the jury on the element of the lawfulness of defendant’s arrest. Generally, the Fourth Amendment of the United States Constitution does not require a police officer to obtain a warrant to arrest where there is probable cause to believe a felony has been committed. United States v Watson, 423 US 411; 96 S Ct 820; 46 L Ed 2d 598 (1976). Whether or not there is time to get a warrant is irrelevant. Id. In Michigan, a peace officer has statutory authority to arrest without a warrant if he has reasonable cause to believe that a felony has been committed and that the person he seeks to arrest committed the felony. MCL 764.15; MSA 28.874. Here, the trial court instructed the jury that they had to find reasonable cause in order to conclude that the arrest was lawful. Nonetheless, defendant argues that, since he was seized in a private residence, the warrantless arrest was unlawful absent exigent circumstances. Pursuant to this reasoning, defendant requested that the trial court instruct the jury on the issue of exigent circumstances. The trial judge denied defendant’s request, insisting that he had already decided the issue as a matter of law in considering defendant’s pretrial motion to quash. Such denial did not constitute reversible error because, under the facts presented at trial, the existence of exigent circumstances was irrelevant to the issue of the lawfulness of the arrest. Defendant was protected against an unreasonable seizure by the existence of probable cause. An issuance of a search warrant to search for and seize defendant in the third party’s (the Tates’) home would not have further protected defendant against an unreasonable seizure. Rather, it would have merely served to safeguard the Tates’ reasonable expectation of privacy in their home and to their possessions. Absent exigent circumstances, the entry into the Tate residence without a search warrant to arrest defendant was unreasonable as to the Tates. Steagald v United States, 451 US 204, 212; 101 S Ct 1642; 68 L Ed 2d 38 (1981). It did not render defendant’s arrest unlawful. The trial court is "not obligated to give requested instructions which are not warranted by the facts.” Jenkins v Starkey, 95 Mich App 685, 692; 291 NW2d 170 (1980). Because the facts of the case did not warrant the requested instruction, the trial court did not err reversibly in failing to give said instruction. We similarly find that the facts did not warrant the directing of a verdict in favor of defendant on the issue of exigent circumstances. Because the lack of a warrant did not make defendant’s arrest unreasonable, the prosecutor did not in fact have to produce evidence of exigent circumstances to establish the lawfulness of the arrest. Nonetheless, even if the facts warranted such proofs, a directed verdict was still not necessary. After reviewing the record, we believe that a rational trier of fact, in considering the evidence in a light most favorable to the prosecution, could conclude that the lawfulness of the arrest, as well as the other elements of the crime, were proven beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). hi Isolating several comments and evidentiary rulings, defendant also argues that the trial court failed to maintain an impartial attitude, thereby requiring reversal. A judge pierces the veil of judicial impartiality so as to require reversal when his comments are of such a nature as to unduly influence the jury and thereby deprive the defendant of his right to a fair trial. People v Doss, 122 Mich App 571, 576; 332 NW2d 541 (1983), lv den 417 Mich 1100.16 (1983). A careful review of the trial transcript indicates that, at times, the trial court may have appeared to be critical of defense counsel and that some of its rulings may have been inconsistent to a minor extent. However, we also observe a number of instances where the trial court treated defense counsel politely and with consideration. We conclude that the examples cited by defendant are not so egregious as to demonstrate that the judge exceeded the bounds of fairness and deprived defendant of a fair trial. iv Finally, we reject defendant’s assertion that he was denied effective assistance of trial counsel. After thoroughly reviewing the lower court record, we cannot conclude that defense counsel’s performance violated the standards set forth in People v Garcia, 398 Mich 250, 264; 247 NW2d 547 (1976), reh den 399 Mich 1041 (1977). Nor did the trial court err reversibly when it appointed defendant’s trial counsel to represent him on this appeal. In his brief, defendant admits that he originally retained his trial counsel to represent him on this appeal, whereupon counsel explained to him the impracticability of raising the issue of ineffective assistance of counsel. Nonetheless, at the subsequent motion to withdraw, counsel’s only stated reasons for desiring to be relieved from his duties as appellate counsel was the defendant’s inability to afford a trial transcript and his services. Having heard no other grounds in support of the motion and having found defendant to be an indigent, the lower court appointed trial counsel to continue to represent defendant on this appeal. We therefore find that defendant has waived his argument that he should be provided with a new appeal because of his counsel’s inability to sufficiently argue the effective assistance of counsel issue. The proper time to raise this argument was at the motion to withdraw. Counsel cannot accept an appointment by the trial court with knowledge of this conflict and then raise it for the first time at the end of his lengthy appellate brief. As counsel was aware of the conflict at the time of his motion to withdraw, the fact of his inability "at the time to articulate the issue” and that "he was fearful of a malpractice suit,” as explained in defendant’s brief, were insufficient reasons to excuse his failure to raise it at that time. Affirmed. R. M. Maher, J., concurred.

Per Curiam. Plaintiffs Ralph E. Eley and Amelia Eley sued for damages for injuries and loss of consortium, respectively, arising out of an accident in which a taxicab, owned by defendant Sanchil, Inc., and driven by defendant Turner, struck the rear of plaintiff Ralph Eley’s vehicle. Defendants admitted fault but contested whether Ralph Eley had suffered serious impairment of body function. A district court jury returned a verdict against defendants of $37,500 for Ralph Eley and $1,500 for Amelia Eley. Defendants’ motion for a new trial was denied but, on appeal, the circuit court reversed and remanded for new trial. We granted plaintiffs’ application for leave to appeal. We affirm the judgment and order of the circuit court. Two issues are before us for review: whether defendants were denied a fair trial, first, because Turner’s driving record was taken into the jury room although it had been ruled inadmissible, and, second, because of improper remarks made by plaintiffs’ counsel during closing argument. i Although the facts of the circumstances surrounding the offer of Turner’s driving record, the court’s denial of the motion to admit the driving record, and its unexplained appearance in the jury room along with the properly admitted exhibits are not in dispute, the purpose of the exhibit’s proposed admission is subject to some dispute. While the underlying concern was that the admittedly bad driving record would prejudice the jury, the plaintiffs purportedly offered the driving record to prove negligent entrustment of a motor vehicle to Turner by Sanchil, Inc. However, Sanchil, Inc., claims that its admission of liability for the accident left only the issues of whether Ralph Eley’s injuries constituted a substantial impairment of bodily function, whether Amelia Eley supported her loss of consortium claim, and whether Ralph Eley was in any way comparatively negligent. Nonetheless, plaintiffs never challenged on appeal the propriety of the district court’s refusal to allow introduction of the driving record, and, as a result, only the subsequent erroneous submission of the driving record to the jury is before us. The matter of offering Turner’s driving record was first presented to the district court out of the presence of the jury by a motion to reopen plaintiffs’ case. Defendants objected, but the trial court allowed plaintiffs to make the offer in the presence of the jury. Before the jury, the court noted that defendants had objected to the admission of the driving record and that the court had sustained the defendants’ objection. It is clear that in whatever manner the Turner driving record came into the hands of the jury, it was inadvertent and was not alleged to be due to any misbehavior by the parties. On appeal, the circuit court found dispositive the rule concerning jury access to excluded evidence that was set forth in the century-old case of Scripps v Reilly, 38 Mich 10 (1878). The court found that plaintiffs’ contentions that the jury must not have placed much credence on the inadmissible driving record were mere speculation, and that the totality of the circumstances compelled the conclusion that all reference to the driving record should have been kept from the jury. Plaintiffs now argue that in such cases prejudice is not to be presumed and that defendants failed to demonstrate prejudice. Plaintiffs contend that there was no sufficient probability that the jury was misled or improperly influenced and the error was in fact harmless in view of defendants’ admission of liability. Plaintiffs assert that since their attorney gave details of Turner’s driving record in his opening remarks, even though the remarks are not evidence, the jury’s subsequent receipt of the record was not error requiring reversal. Scripps involved a libel action where counsel, in offering certain newspaper articles as evidence, revealed the substance of the articles to the jury. The Supreme Court found that, even though the lower court refused to admit the articles, the damage had been done. Justice Marston put it as follows: Everything having a tendency to prejudice or influence a jury in their deliberations which is not legally admissible in evidence on the trial of the cause, should be, so far as possible, kept from coming to their knowledge during the trial. An impression once made upon the mind of a juror, no matter how, will have more or less influence upon him when he retires to deliberate upon the verdict to be given, and no matter how honest or conscientious he may be, or how carefully he may have been instructed by the court to not permit such incompetent matters to influence him, or have any bearing in the case, it will be very difficult, if not impossible, for him to separate the competent from the incompetent, or to say to what extent his impressions or convictions may be attributed to that which properly should not have been permitted to come to his knowledge. [38 Mich 15.] The spirit of Scripps is embodied in MRE 103(c), which provides: In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. Scripps is still good law. See People v Strong, 404 Mich 357, 363; 273 NW2d 70 (1978), reh den 406 Mich 1103 (1979). The circuit court, in reviewing the district court’s refusal to grant a new trial, correctly apprehended that there was no significant difference between the instant case and Scripps. Indeed, in our view, the likelihood of a tainted jury award was stronger than that in Scripps because the jury not only heard the inadmissible evidence, they were also able to view it and review it as often as they liked during the course of their deliberations on the plaintiffs’ damages. The plaintiffs attempted to analogize this case to criminal cases which hold that the submission to the jury of documents and exhibits that have not been admitted into evidence does not constitute error requiring reversal unless the error has operated to substantially prejudice the defendant’s case. Although People v Allen, 94 Mich App 539, 543-544; 228 NW2d 451 (1980), lv den 411 Mich 1044 (1981), and People v Jones, 128 Mich App 335; 340 NW2d 302 (1983), do stand for this proposition, we believe that it is obvious that, in civil cases such as the case at bar, the likelihood of substantial prejudice in the form of a higher damage award against the defendant is too significant to be ignored. Because of the possibility that the jury’s damage award may have reflected its desire to punish the corporate defendant for its continued employment of a bad driver, reversal was compelled. Nor can plaintiffs’ argument that the fact that their attorney already made reference to the driving record in his opening remarks be countenanced as a reason for allowing the verdict to stand. The real issues of the case, those concerning Ralph Eley’s injuries and Amelia Eley’s loss of consortium, were too likely sidetracked by the jury’s receipt of Turner’s driving record. Accordingly, the circuit court did not err in concluding that this error was too substantial to be deemed harmless. ii In reversing the district court and in granting defendants’ motion for a new trial, the circuit court found plaintiffs’ counsel’s approach in final argument to be "bizarre” and beyond the bounds of good faith advocacy. He concluded that plaintiffs’ final argument was offensive to the rule articulated in Wayne Co Bd of Road Comm’rs v GLS LeasCo, Inc, 394 Mich 126; 229 NW2d 797 (1975). In GLS LeaseCo, Inc, a land condemnation case, the Supreme Court found that the board attorney’s abusive treatment and unfounded attacks upon LeasCo’s witnesses, his appeal to the jurors’ self-interest as taxpayers, and his attacks on LeasCo’s lawyer and suggestions that he "bought” testimony required reversal. Justice Levin wrote: The improper remarks directed at LeasCo’s witnesses and lawyer demeaned them in the eyes of the jury. Whether those remarks were calculated to prejudice the jury or instead were innocent overzeal by the board’s lawyer, they deprived Leas-Co of a fair trial. Irrelevant, disparaging and accusatory remarks divert the attention of the jury from the merits of the case. We appreciate that each side seeks to develop facts harmful to its opponent’s case and endeavors in that sense to "prejudice” the jury to its own cause. There is, however, a limit to the excesses which will be excused as zealous advocacy. When the improper conduct of a lawyer exceeds that limit, this Court will be "quick to condemn it in appropriate language.” A substantial doubt regarding the fairness of the trial has been raised by the egregious and repetitive nature of the misconduct of the board’s lawyer. On this record, we are not able to say that the jury was not diverted from the merits by the repetitious aspersions, nor could we say that the "mischief done” was cured by the judge’s efforts. [394 Mich 138-139]. In the instant case, the district court repeatedly sustained objections to plaintiffs’ counsel’s remarks. In gauging the tenor of these remarks by plaintiffs’ counsel, we would be reluctant to place them in a class with those condemned by the Supreme Court in GLS LeasCo, Inc. Nonetheless, guided by Justice Levin’s remarks in that case, we are persuaded that the remarks were sufficient to deprive the instant defendants of a fair trial. Plaintiffs’ counsel certainly did attempt to introduce and attribute statements in his closing argument to persons who did not testify, he attempted on several occasions to improperly comment on the evidence based on his own personal experience rather than based on trial testimony, and, most troubling, he attempted to call into question the honesty and integrity of his opposing counsel. Standing alone, perhaps these transgressions should go unredressed. However, taken together with the accidental submission of Turner’s driving record to the jury along with the other properly admitted exhibits, the jury award becomes so tainted by prejudice as to demand retrial. We find no error in the circuit court’s reversal of the district court and its remand to that court for a new trial. Affirmed.

Per Curiam. Plaintiff Barbara Hill, as personal representative of the estate of Marcellus Moton, brought this wrongful death action against defendants in Saginaw Circuit Court. Plaintiffs second amended complaint contained counts of gross negligence (Count i), violation of 42 USC 1983 (Count n), and loss of consortium (Count hi). On February 8, 1983, the trial court granted the Saginaw County Sheriffs Department’s motion to dismiss. On May 6, 1983, the trial court granted summary judgment to the City of Saginaw, the Saginaw Police Department, and the County of Saginaw as to Counts i and n of plaintiffs complaint. On September 28, 1983, the trial court granted summary judgment to defendants Joseph Juras, Walter Ostrander, Dennis Martin, Jeanette Blacksher, Mary Niswander and Kenneth Nolan, who were deputies of the Saginaw County Sheriffs Department. On October 31, 1983, the trial court ordered that the action against Patrick Rudy be dismissed per stipulation of the parties, that Counts n and m against all remaining defendants be dismissed, and that Count i be dismissed against defendant John Engels. Plaintiff appeals as of right. We affirm. On August 30, 1980, plaintiffs decedent Marcellus Moton was operating his automobile in the City of Saginaw, Saginaw County. Moton’s vehicle struck first a parked car and then an automobile stopped at a stop sign. Officer John Engles’ deposition testimony included the following. Immediately after the second collision occurred, defendants John Engles and Patrick Rudy of the Saginaw Police Department arrived at the scene of the second accident and performed an initial investigation. Engles went to Moton’s car immediately. The car’s doors were locked, and Engles could see Moton sleeping on the front seat. Moton had no obvious injuries and there was no blood, so Engles attended to the other parties at the scene who were visibly injured. Five to six minutes after he had arrived at the scene, Engles succeeded in opening the door of Moton’s vehicle. It was obvious, according to Engles, that Moton had been drinking heavily, and Officer Engles noted that Moton was a "classic example of a duil.” Moton did not appear to be injured and he walked back to the patrol car with Engles, but kept falling asleep while being questioned. Engles asked Moton if he wanted to go to the hospital or take a Breathalyzer test; Moton understood and indicated that he wanted to take the Breathalyzer test. Moton was arrested for driving under the influence of intoxicating liquor, failure to produce an operator’s license, and failure to control a motor vehicle. The Breathalyzer test showed that Moton had a blood alcohol level of 0.19 percent, and he was taken to the county jail. Engles indicated that he could have taken Moton to a hospital, but that he did not do so because there was no outward manifestation of injury and Moton had said he was not hurt. Plaintiff filed the affidavit of Lutitia Tillman in support of her objections to defendants’ motion for summary judgment. A careful reading of the affidavit reveals that Tillman did not directly contradict the deposition testimony of Officer Engles. Tillman’s affidavit stated that she arrived at the scene shortly after the accident and that Moton told her that he was hurt. She noted that she never heard the officers ask defendant if he was injured or if he needed medical attention. Tillman also indicated that Moton said he could not stand up and that he was not walking erect when the officers escorted him to their police car. This affidavit did not raise a genuine issue of material fact, because it did not directly contradict the deposition testimony of Officer Engles. The fact that Moton did not stand up straight is consistent with Engles’ testimony that Moton was drunk. Since Tillman was not with Moton and Officer Engles in the patrol car, she would not have heard Engles ask Moton if he wanted to go to the hospital or take a Breathalyzer test. Tillman also stated that Moton was not drunk, but plaintiff now concedes that Moton was intoxicated when the accident occurred. Consequently, Tillman’s affidavit did not prevent the grant of a summary judgment to defendants. At the Saginaw County Jail, defendants Engles and Rudy surrendered custody of Moton to Corporal Joseph Juras of the Saginaw County Sheriffs Department. Defendants Walt Ostrander, K. Nolan, D. Martin, Jeanette Blacksher and M. Niswander allegedly shared custody of Moton until he was released from custody approximately ten hours later. The next day, plaintiffs decedent was admitted to Saginaw Osteopathic Hospital, and surgery was performed to repair a torn colon. He died on September 1, 1980. The deposition of Royce Skaggs, D.O., a pathologist at the hospital, indicated that the cause of Moton’s death was adult respiratory distress syndrome, which follows trauma. An autopsy performed by Skaggs revealed that there was no outside evidence of trauma except the marks from the operation and that there was nothing which could be externally observed that would indicate that plaintiffs decedent had a ripped colon. Skaggs noted that symptoms of this injury might not be apparent; falling asleep in midsentence would not likely be a symptom of the injury. He opined that a blood alcohol level of 0.19 percent, however, could cause one to fall asleep and have trouble communicating. The deposition of Jay K. Harness, M.D., the Director of the Office of Health Care of the Michigan Department of Corrections, who helped write the AMA Standards for Health Care in Jails, indicated that the procedures in this case complied with the spirit of those standards. He also noted that the immediate effects of an injury like the one Moton suffered may be nothing at all and that it would take eight to twelve hours for bacteria to grow and an infection to develop. Only at that time would the patient feel abdominal pain. Harness stated that even a trained person would have trouble diagnosing the injury, because it would take time to manifest itself. He opined that it was not at all unusual that the arresting and booking officers would not have recognized Moton’s injury. Plaintiff contends that the trial court erred when it granted summary judgment to the City of Saginaw and the County of Saginaw, because MCL 691.1407; MSA 3.996(107) did not preclude recovery on Count i of plaintiff’s complaint and plaintiff had alleged a cause of action under 42 USC 1983 in Count ii of her complaint. First, plaintiff argues that the trial court erred when it permitted the county to orally join in the city’s motion for summary judgment. Plaintiff concedes that it may be proper to bring such a motion during a hearing, but contends that defendants did not state "with particularity the grounds therefor,” as required by GCR 1963, 110.2(1), now MCR 2.119(A)(1)(b). That contention lacks merit, however, because the statement of grounds requirement applies "unless [the motion is] made during a hearing or trial.” Next, plaintiff contends that her claims of negligence and loss of consortium were not barred by governmental immunity, because (1) transporting or obtaining appropriate medical attention for an injured person is not a governmental function, (2) the defendants’ failure to obtain medical attention was intentional, willful, and wanton, and (3) omissions can never be activities in the exercise or discharge of a governmental function. She also asserts that she stated a claim against the county and the city under 42 USC 1983, because her complaint alleged facts which would result in defendants’ being directly, rather than vicariously, liable. Thus, plaintiff contends that the trial court’s opinion and order must be reversed. We disagree. First, we consider plaintiffs contention that the defendants’ activities were not in the exercise or discharge of a governmental function. Governmental agencies are immune from tort liability only when they are engaged in the exercise or discharge of a governmental function, Ross v Consumers Power Co (On Reh), 420 Mich 567, 608; 363 NW2d 641 (1984); MCL 691.1407; MSA 3.996(107). The broad grant of immunity from tort liability provided by MCL 691.1407; MSA 3.996(107), when considered along with the four narrowly drawn exceptions contained in the statute, suggests that the Legislature intended that the term "governmental function” be interpreted in a broad manner, Ross, supra, p 618. Therefore, the Supreme Court has concluded that a governmental function is any activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law, Ross, supra, p 620. In her second amended complaint, plaintiff alleges that the Saginaw Police Department "is the primary law enforcement agency serving the City of Saginaw” and that it exists "by virtue of the constitution and statutes of the State of Michigan and the charter of the City of Saginaw.” She makes similar allegations regarding the county sheriffs department. We agree that the County of Saginaw has a statutory duty to operate and maintain a jail pursuant to MCL 51.75; MSA 5.868 and MCL 45.16; MSA 5.291. Thus, the operation of a jail by a county is a governmental function. We also conclude that the operation of a police department is a governmental function, see Dickey v Fluhart, 146 Mich App 268, 275-276; 380 NW2d 76 (1985), and Cook v Detroit, 125 Mich App 724, 733; 337 NW2d 277 (1983). Consequently, plaintiffs argument that the city was not engaged in a governmental function must also be rejected. Next, plaintiff argues that, even if defendants were engaged in governmental functions, they were committing intentional torts and thus were not protected by immunity. However, the mere fact that plaintiff alleged that defendants intentionally failed to take appropriate action does not convert a claim from one of negligence into one of intentional tort, Williams v Michigan, 144 Mich App 438, 441; 376 NW2d 117 (1985), lv den 424 Mich 853 (1985). Willful and wanton misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does, Williams v City of Cadillac, 148 Mich App 786, 793; 384 NW2d 792 (1985). Generally, where the act complained of is one of omission rather than commission, it is not an intentional tort, Hobrla v Glass, 143 Mich App 616, 629; 372 NW2d 630 (1985). Defendants’ alleged failure to notice that plaintiffs decedent had internal injuries was an omission, and it did not rise to the level of willful and wanton misconduct. On these facts, plaintiff cannot avoid the bar of immunity by way of the intentional tort exception to the governmental immunity act. We note that plaintiff’s additional contention that omissions can never be considered to be in the exercise or discharge of a governmental function misconceives the test set out in Ross. As noted in Ross, pp 620-621, that test is broad and encompasses most of the activities undertaken by governmental agencies. Next we consider plaintiff’s contention that she stated a claim against the city and the county under 42 USC 1983. A municipality cannot be found liable under 42 USC 1983 on a respondeat superior theory. Rather, the municipality must be sued directly and liability must be based on an official policy, Moore v Detroit, 128 Mich App 491, 499; 340 NW2d 640 (1983), lv den 422 Mich 891 (1985). Mere negligence is insufficient under § 1983; the applicable standard is deliberate indifference, gross negligence, or recklessness, Moore, supra, p 502. It is undisputed that the Saginaw police department had a policy of taking a person to the hospital if there was any reason to believe that he or she was injured or ill and that the jail had a policy of receiving and screening inmates for medical problems which complied with the spirit of ama standards for health care in jails. Consequently, we conclude that the plaintiff has failed to adequately allege or to show that either the city or the county had the requisite policy or custom of depriving arrested persons or inmates of their constitutional rights or that they evinced deliberate indifference to plaintiff’s decedent. The trial court did not err when it granted summary judgment to the county and the city on Count ii of plaintiff’s complaint. The second issue raised by the plaintiff concerns the trial court’s dismissal of her action against the Saginaw County Sheriff’s Department. First, the trial court addressed plaintiff’s argument that the Sheriff’s Department’s "motion to dismiss” was one for accelerated judgment and that it should have been rejected as untimely because it was brought later than that defendant’s first responsive pleading. See GCR 1963, 116.1. The trial court ruled that plaintiff had a duty to plead facts in avoidance of immunity and that she had not done so. Consequently, the court considered the motion on its merits. We conclude that the trial court’s ruling was correct. GCR 1963, 116.1 did not expressly address motions brought on the basis of governmental immunity. When plaintiff brought this action, there was support in the case law for the proposition that immunity was not an affirmative defense. See Ross, supra, p 621, n 34. Next, the trial court ruled that the sheriff was not liable for the actions of his deputies, and it granted the motion to dismiss the claims against the sheriff’s department. That ruling was not error. See Bayer v Macomb Co Sheriff, 29 Mich App 171; 185 NW2d 40 (1970), Lopez v Ruhl, 584 F Supp 639, 648-649 (WD Mich, 1984), and MCL 51.70; MSA 5.863. Third, plaintiff contends that the trial court erred by granting summary judgment to the individual defendants on her claims of gross negligence and loss of consortium. Lower level officials, employees, and agents are immune from tort liability only when they are (1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority, (2) acting in good faith, and (3) performing discretionary, as opposed to ministerial, acts, Ross, supra, p 633-634. Plaintiff did not allege and does not contend that the individual defendants were not acting during the course of their employment and in the scope of their authority or that they were not acting in good faith. Medical decisions are discretionary, although execution of these decisions may be ministerial, Tobias v Phelps, 144 Mich App 272, 281; 375 NW2d 365 (1985), lv den 424 Mich 859 (1985). A decision that a person is not in need of medical care is also discretionary. Consequently, none of the individual defendants can be sued for their failure to discern the medical needs of plaintiffs decedent. Plaintiff also argues that the individual defendants were liable under 42 USC 1983. We disagree. In Tobias, supra, we noted: In order to state a claim under 42 USC 1983 for deprivation of medical treatment, the plaintiff "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs”. . . . Allegations of negligence or medical malpractice are insufficient. ... A medical need is serious if it is one that has been diagnosed by a physician as requiring treatment or it is so obvious that even a layperson would recognize the necessity of medical attention. ... To have acted with "deliberate indifference”, defendants must have either intentionally denied or unreasonably delayed treatment of a discomfort-causing ailment or wilfully failed to provide prescribed treatment without medical justification. ... In Westlake v Lucas, 537 F2d 857, 861 (CA 6, 1976), the court held sufficient to withstand a motion for dismissal plaintiff’s allegations "that he was forced to endure a period of intense discomfort because his pleas for medical assistance went unheeded”. [144 Mich App 277-278. Citations omitted; emphasis added.] In this case, summary judgment was proper. The deputies and the police officers were not deliberately indifferent to Moton’s medical needs. Moton denied that he was injured and refused treatment. Medical testimony indicated that, given the type of injury he had, he probably would not have had symptoms until eight to twelve hours after the accident; he was released from the jail after less than ten hours. The trial court did not err when it concluded that plaintiff could not recover from the individual defendants on Count ii of her complaint. Affirmed. We note that MCR 2.116(C)(7) includes "immunity granted by law” as a ground for summary disposition which must be raised in a party’s first responsive pleading, MCR 2.116(D)(2). Thus, under the new court rules, a party may have to raise the defense of governmental immunity in a timely manner.

Per Curiam. Plaintiffs appeal as of right orders of the Ingham Circuit Court issued October 1, 1984, Honorable Jack W. Warren presiding, affirming the Public Service Commission’s decision to structure The Detroit Edison Company’s tariffs so as to include multiple dwellings with three or more units serviced by a master electrical meter in the commercial tariff schedules. The commission first considered the question of the appropriate rate to be applied to multiple-unit dwellings in Case No. U-5502 (our No. 81302), a case arising out of an August, 1977, petition for rate increase filed by Edison. In that case, the hearing officer’s proposal for decision, adopted by the commission, found that such multiple-unit dwellings use electricity in a different manner than single-family dwellings and duplexes, and that such uses were more consistent with a commercial than a residential classification. Among the factors considered were the presence of coin-operated laundry facilities, large recreational facilities, and outdoor lighting used every night, all night — uses not normally found in single-family dwellings and duplexes. In our No. 81303, the commission merely continued the rate structure adopted previously in the course of authorizing a general rate increase. In our No. 81304, the commission extended the commercial classification to space-heating accounts served by a master meter and involving multiple-unit dwellings,, 603 of which had been "grandfathered” into a residential classification. Newer space-heating accounts were being charged at a commercial rate. We note that elimination of such grandfathered rate disparities appears mandated by the nondiscrimination statute, MCL 460.557; MSA 22.157. Finally, in our No. 81305, the commission again was faced with a rate relief request and refused to tinker with the existing rate structure. In all cases subsequent to No. U-5502, the commission declined to reexamine the question of rate structure, and instead relied on its previous rate structure decisions as a point of departure in addressing the narrower questions presented in each later case. The various plaintiffs appealed each commission decision to the Ingham Circuit Court pursuant to § 26 of the Public Service Commission act, MCL 462.26; MSA 22.45, seeking class action certification. The circuit court consolidated the appeals, denied class action treatment in each case, and affirmed the commission’s decisions. Plaintiffs ask this Court to indulge in a detailed review of the evidence presented in No. U-5502 regarding rate design. The commission staff and Edison each presented one witness who favored treating multiple-unit master-metered dwellings under a commercial rate, while the plaintiff apartment owners presented a witness who gave contrary testimony. The issue of rate structure is not one of fact, but of legislation. Attorney General v Public Service Comm #2, 136 Mich App 515, 523; 358 NW2d 351 (1984). This Court does not review legislative action for "competent, material and substantial evidence on the whole record,” Const 1963, art 6, § 28, but must instead defer to the legislative body, Sigal v Detroit, 140 Mich App 39, 44; 362 NW2d 886 (1985), absent breach of a constitutional standard or a statutory mandate or limitation. We have, accordingly, reviewed the records in this case in light of that standard. Plaintiffs allege that the commission erred and deprived them of a fair hearing by refusing, in cases subsequent to No. U-5502, to permit reexamination of the rate structure question. This Court has had recent occasion to comment on this type of procedure. As discussed in Attorney General v Public Service Comm #1, 133 Mich App 719; 349 NW2d 539 (1984), the commission, in 1978, had adopted an "Other Operations and Maintenance Expense Indexing System” for tracking certain types of expenses and as a means of regulating a rise in such expenses. In subsequent rate cases, the commission refused to "reinvent the wheel” by tinkering with the system or reconsidering its adoption. The Attorney General challenged this practice, contending that the refusal of the commission to reexamine the system in subsequent rate cases was a violation of requirements that it "consider and give due weight to all lawful elements properly to be considered to enable it to determine the just and reasonable price to be fixed for supplying electricity,” MCL 460.557; MSA 22.157. This Court held: We disagree. Annual rate increases pursuant to the Other O & M Indexing System did not have to be preceded by full and complete hearings such as are held in main rate cases. Attorney General v Public Service Comm, 122 Mich App 777; 333 NW2d 131 (1983). The full and complete hearing, as envisioned by the statute, was held prior to the issuance of the order originally establishing the system in 1978. The indexing system was adopted in that context, with all relevant factors being considered. Each subsequent indexing order, which was preceded by notice and hearing, merely applied the formula previously established in the main case to allow recovery of a reasonable amount for other O & M expenses. We hold, therefore, that the commission can issue valid annual orders allowing rate increases based on the change in the cpi without holding a full and complete hearing each year, as is done in the main rate case, when the single-factor hearing was anticipated and provided for in the principal rate case and order. [133 Mich App 727.] Accord NLRB v Wyman-Gordon Co, 394 US 759, 765-766; 89 S Ct 1426; 22 L Ed 2d 709 (1969) (Fortas, J.); Ohio Fast Freight, Inc v United States, 574 F2d 316, 319 (CA 6, 1978). See also Safeway Stores, Inc v Federal Trade Comm, 366 F2d 795 (CA 9, 1966), cert den 386 US 932; 87 S Ct 954; 17 L Ed 2d 805 (1967); Bd of Co Comm’rs of Shawnee Co v Brookover, 198 Kan 70; 422 P2d 906 (1967). Plaintiffs contend that the tariff differentials as adopted by the commission deny them equal protection of the law. Plaintiffs further argue that the court below erred by refusing to apply the "means scrutiny” test articulated in Alexander v Detroit, 392 Mich 30; 219 NW2d 41 (1974). We agree that the test in Alexander should have been applied but, because the circuit court nevertheless reached the right result for the wrong reason, we affirm. Thompson v Dep’t of Corrections, 143 Mich App 29; 371 NW2d 472 (1985). Master metering in multiple-unit apartment buildings is inconsistent with energy conservation: individual meters provide an economic incentive for each tenant to limit his or her consumption of electricity; in contrast, master metering provides no such incentive to tenants, since they pay a flat rental rate. Accordingly, we conclude that the tariff differentials are based on natural distinguishing characteristics and bear a reasonable relationship to energy conservation objectives. Thus, the first inquiry of the "means scrutiny” test is satisfied. Master-metered duplexes are of course not completely distinguishable from complexes of three or more units, and there may be reasons for treating complexes of three or four units like duplexes. Nevertheless, it is constitutionally permissible to draw a line in a reasonable place, even though arguably the line could be drawn elsewhere with equal facility. See, e.g., Shavers v Attorney General, 402 Mich 554, 632; 267 NW2d 72 (1978). It is clear that, because apartment complexes contain more units, more and more facilities which consume more and more electricity become the norm, e.g., hallway and parking area lights, laundry and other common facilities. We do not find that the line drawn by the commission is arbitrary or unreasonable and we conclude that the second inquiry of the "means scrutiny” test is satisfied. Plaintiffs also contend that the notice issued by the commission in No. 81304 failed to comply with § 6a of the Public Service Commission act MCL 460.6a; MSA 22.13(6a). We doubt whether plaintiffs have standing to raise this issue, since they timely intervened in the proceedings before the commission. Furthermore, we tend to the opinion that this challenge comes too late, since plaintiffs failed to make a timely attempt to point out defects in the notice, which would have allowed the commission to amend the notice seasonably, but waited to raise the issue until they appealed to circuit court. In any event, since we find no merit in any of the substantive issues presented and are affirming the commission’s rate structure design as adopted, any defect in the notice was harmless error. Nevertheless, we have examined the notice and find that it adequately apprised interested ratepayers that a petition was pending before the commission which might lead to a rate increase affecting them and that, if they wished to protect their rights, they should file an intervention petition in timely fashion. Finally, plaintiffs contend that the circuit court erred in denying their motions for class action certification. Plaintiffs ask this Court to apply GCR 1963, 208, as amended effective April 1, 1983. Since, however, the rule amendments changed class actions in Michigan from the "opt in” format, Grigg v Michigan National Bank, 405 Mich 148; 274 NW2d 752 (1979), to an "opt out” format, GCR 208.1(C) and 208.3(E)(2) [now carried forward in MCR 3.501(A)(3) and 3.501(C)(5)(b)], full application of the amended rule "would not be feasible or would work injustice.” MCR 1.102 and order of the Supreme Court dated December 29, 1982, implementing amended rule 208, 417 Mich cxxxiii. Nonetheless, the amended rule does set forth the relevant criteria for determining whether to grant or deny a motion to certify a class action. In statutory appeals of Public Service Commission rate determinations, any relief accorded in terms of refunds must, of necessity, apply to the entire class, MCL 460.557; MSA 22.157, and plaintiffs, if successful, may not only tax their costs, but also are entitled to have the reasonable fees and expenses of their attorneys paid out of the refund pool. Jones v O’Donnell, 292 Mich 189; 290 NW2d 375 (1940); Aetna Casualty & Surety Co v Starkey, 116 Mich App 640; 323 NW2d 325 (1982). Class action certification would serve no practical purpose. Where, as here, the appeal is determined to be without merit both by the appellate court of first instance and by this Court on further review, no economically rational member of the affected class would opt into the lawsuit, and all would certainly opt out given proper notice explaining the consequences of participation. Therefore, absent unusual circumstances not here present, we agree with the circuit court that class action treatment is not available in Public Service Commission appeals. Affirmed.

Per Curiam. Plaintiff appeals as of right from a Wayne Circuit Court order granting defendant’s motion to dismiss on the grounds of forum non conveniens. We reverse. The facts of this case are on all fours with those in Cray v General Motors Corp, 389 Mich 382; 207 NW2d 393 (1973), where the Supreme Court affirmed a lower court order denying the defendant’s motion to decline jurisdiction. In light of the Court’s holding that application of the doctrine of forum non conveniens should lie within the discretion of the trial judge, we would be loath to say that a judge could never decline jurisdiction when faced with facts similar to those in Cray. However, we would expect that the judge’s decision would reveal some reason for distinguishing Cray. We cannot find such a reason in this case and, accordingly, would reverse and remand for trial. When a party requests that a court decline jurisdiction based on the doctrine of forum non conveniens, there are two inquiries for the court to make: whether the forum is inconvenient and whether there is a more appropriate forum available. If there is not a more appropriate forum elsewhere, the inquiry ends and the court may not resist imposition of jurisdiction. If there is a more appropriate forum, the court still may not decline jurisdiction unless its own forum is seriously inconvenient. In this case, the trial judge identified three reasons for declining jurisdiction: the accident occurred in Virginia, plaintiff resided in Virginia and defendant was doing business in Virginia. These reasons, along with defendant’s agreement to stipulate to jurisdiction in a Virginia court and to waive any statute of limitations, lead to the conclusion that a Virginia forum is available which, at least in some respects, has advantages over the Wayne Circuit Court. However, the judge’s reasons do not appropriately address the inconvenience of his court as a forum. The fact that defendant was doing business in Virginia says nothing of the convenience or lack thereof of the Wayne Circuit Court. Indeed, Wayne County is defendant’s principal place of business. The fact that plaintiff is a resident of Virginia is also of no moment; she has elected Wayne Circuit Court as her forum of choice. That the accident occurred in Virginia does suggest that some of the Cray factors came into play. However, the trial judge did not address any of these factors and, on review of the record, we cannot find that any injustice would result from retention of jurisdiction in Wayne County. Plaintiff asserts that Michigan law should apply. See Olmstead v Anderson, 145 Mich App 160; 377 NW2d 853 (1985). Plaintiffs suit alleges negligent design of the tractor occurring in Michigan; pretrial discovery on this claim would probably center in Wayne County. Plaintiff further claims that there were no eyewitnesses to the rollover and that she would be the only one testifying as to the circumstances surrounding the accident. We do not regard defendant’s allegation that there may be other Virginia witnesses not subject to compulsory process in Michigan as sufficient in itself to support dismissal of plaintiff’s action. The allegations are not supported by record evidence and are speculative at this time. Also, we regard the necessity of a view of the premises as unlikely in light of defendant’s earlier removal of plaintiff’s first action, filed in a Virginia state court, to a Virginia federal court more than one hundred miles from the site of the accident. In Cray, the Supreme Court referred to the commentary to Restatement Conflict of Laws 2d, § 84, which included a corporation’s principal place of business as an appropriate forum. Cray, supra, pp 394-395, n 2. Recently, a panel of this Court has stated that the doctrine of forum non conveniens is applicable only where, inter alia, neither party is a resident of the forum state. Duyck v International Playtex, Inc, 144 Mich App 595, 602; 375 NW2d 769 (1985). At this time, we are hesitant to follow our colleagues on the Duyck panel and adopt the mandatory rule stated in that case. Nevertheless, the above citations suggest that it must be a truly exceptional case where the defendant’s principal place of business would not be a convenient forum. This case so lacks of any exceptional factors that we can only conclude that the trial judge’s decision was an abuse of discretion. Marrs v Board of Medicine, 422 Mich 688, 694; 375 NW2d 321 (1985), citing Spalding v Spalding, 355 Mich 382, 385; 94 NW2d 810 (1959). Reversed and remanded for trial.

Per Curiam. The Board of Education of the Royal Oak School District (hereafter respondent) appeals from an order of the circuit court which reversed the State Tenure Commission’s affirmance of the respondent’s discharge of Margaret Perron (hereafter petitioner). Respondent claims that the trial court erred (1) because the court was without power to reverse the State Tenure Commission’s determination that petitioner could properly be discharged while on a leave of absence, (2) because the court made findings of fact independent of the State Tenure Commission, and (3) because the State Tenure Commission’s decision was authorized by law, and supported by competent, material and substantial evidence on the whole record. We are not persuaded by respondent’s claims of error and we affirm. i The record shows that petitioner had taught twelve years prior to the 1978-79 school year, the year the district brought charges that petitioner was unfit to teach. At the conclusion of the previous, 1977-78, school year, petitioner’s principal met with petitioner to discuss her performance for that year. On August 31, 1978, at the commencement of the new school year, her principal prepared a document listing five job targets, areas of petitioner’s performance in which she needed improvement based on the principal’s perception during observation of petitioner the previous school year. These areas were (1) classroom atmosphere and control, (2) varied instructional techniques, (3) reading instruction, (4) mathematics instruction, and (5) social studies and science instruction. The targets were discussed thoroughly, and petitioner was informed by a memorandum that she would be evaluated on December 1, February 1, and April 15 of the 1978-79 school year to determine her progress with regard to the targets. By memorandum placed in petitioner’s personnel file the same date, the principal stated, "it is my expectation that you will be able to meet the agreed-upon targets and that you and your students will have a successful year.” Petitioner’s principal and the principal of a third school, Mr. Wiggins, observed petitioner’s classroom during November of 1978. Both found problem areas to be classroom atmosphere and control, and lack of efficient instructional techniques. Petitioner’s principal concluded that petitioner had improved by January of 1979 only in the area of social studies and science instruction. Otherwise, there was little or no improvement , in the other target areas. In the fall of 1978, petitioner’s performance was reviewed by the Teacher Fitness Advisory Committee, a creature of the teachers’ association and school district’s collective bargaining agreement, composed of representatives of both the association and the district, which gives advice as to teacher performance problems, particularly in the area of health concerns. During her presentation to the committee, petitioner maintained that her teaching difficulties were due to stress. The committee recommended that petitioner take health leave and obtain physical and psychiatric examinations. Petitioner eventually accepted the recommendation and requested leave, which was granted as of January 29, 1979. On April 9, 1979, petitioner’s principal filed tenure charges against petitioner and sought her discharge. Respondent found reasonable and just cause for discharge and dismissed petitioner. Petitioner appealed to the State Tenure Commission. Initially, petitioner filed a motion for summary judgment alleging that respondent’s grant of petitioner’s request for leave of absence estopped the district from filing teacher tenure charges against petitioner. An evidentiary hearing was ordered limited to the issue of whether the granting of petitioner’s leave of absence estopped the respondent from discharging petitioner. Following the hearing, the commission determined that the district had never held out that the leave of absence was disciplinary or was granted in lieu of filing teacher tenure charges against petitioner. Rather, the commission found that any detrimental reliance by petitioner was founded only in the statements of union representatives who advised petitioner to take the leave of absence based upon their subjective belief that her failure to do so would result in the filing of teacher tenure charges. Accordingly, her motion for summary judgment was denied. Pursuant to MCL 600.631; MSA 27A.631 petitioner appealed that ruling to the Oakland Circuit Court, which affirmed, relying on the same testimony relied upon by the commission. Upon remand, testimony was taken on the issue of whether there was just and reasonable cause for petitioner’s discharge. By a four to one vote, the commission affirmed petitioner’s discharge. The State Tenure Commission majority was troubled by petitioner’s claim that she was not afforded enough time to improve her performance since she was effectively given only until January 29, 1979, to improve her performance, as opposed to the entire school year as held out in the "job targets” document. However, the commission ultimately concluded: The timing of the leave of absence and the bringing of charges is troubling in this case. While the leave was granted at appellant’s request, we believe that in future instances the ambiguity created by such a sequence of events should be avoided. Nevertheless, we must agree with appellee that its actions comported with the minimum requirements of the tenure act and that, therefore, the district cannot be held responsible for the resulting reduction in the improvement time set out in the "job targets”. In addition, we note that the job targets were not the first attempt to improve appellant’s performance. The process had begun nearly two years prior to the creation of the job targets. For these reasons, we must conclude that appellant was afforded adequate time to improve. The lone dissenter opined: The "job targets” established by appellant’s building principal set out the time period in which appellant was to achieve the needed improvements. The third and final evaluation of appellant’s performance was to occur in April of 1979. . . . This evaluation was never undertaken, however, because appellant began her leave of absence on January 29, 1979. My colleagues dispose of the difficulty posed by the intervention of the leave by relying on the notion that appellee’s actions did not contravene the express provisions of the Act. This finding cannot end the inquiry, however. While appellee may have complied with the letter of the law, its actions cannot be said to have left the Act’s spirit untrammeled. Thus, the relevant question is: Was appellee’s course of conduct toward appellant just or reasonable in light of all the surrounding circumstances? Based on my review of the record, I find that the answer to this question must be "No”. First appellee’s agents initially represented to appellant that she would have until April to improve her performance .... When appellant "requested” the leave in January, she was implicitly complying with the Teacher’s Fitness Advisory Committee’s and the district’s wishes. Clearly, if appellee had not wanted appellant to take the leave, it would not have been granted. Appellee was, therefore, an active participant in the events which removed any possibility that appellant would be allowed all the improvement time specified in the "job targets” during the 1978-79 school year. While on leave, appellant was expected to, and did, seek a solution to the psychological problems which she felt were impairing her performance. Appellee did not permit her to complete this second means of remediation either before discharge proceedings were commenced. In view of the fact that appellant had nine years of successful teaching prior to the instant difficulties, at least one of these means of improvement should have been pursued to completion. Thus, I find that, at a minimum, appellee’s conduct obliged it to allow appellant to return following the leave so that the success of the treatment could be evaluated in the classroom setting. I conclude that appellee failed to fulfill its obligation to afford appellant an adequate opportunity to improve her performance. Accordingly, I hold that appellee failed to establish just and reasonable cause for appellant’s discharge. Petitioner appealed to the Ingham Circuit Court. Over respondent’s contentions that the court was precluded by the law of the case doctrine from deciding whether the district could have filed tenure charges against petitioner during her leave of absence, the trial court held that once the district held out that petitioner would have the entire year to improve, it could not deny petitioner that improvement by discharging her during a leave of absence granted by the respondent before the period had expired. The trial court stated: "Application of the 'law of the case’ doctrine is not appropriate in this case since [Oakland Circuit Court] Judge Kuhn’s order, issued as it was prior to the Tenure Commission’s Final Order, cannot be considered an appellate decision.” ii Did the doctrine of the "law of the case” preclude the Ingham Circuit Court from holding that petitioner could not be discharged during her leave of absence? The law of the case doctrine holds that, if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same. Cicelski v Sears, Roebuck & Co, 132 Mich App 298, 305-306; 348 NW2d 685 (1984), lv den 422 Mich 916; 369 NW2d 194 (1985). A review of the record in the instant case reveals that the facts submitted to the Ingham Circuit Court were not materially the same as those submitted to the Oakland Circuit Court. Specifically, the "job targets” documents were not a part of the record before the commission on petitioner’s motion for summary judgment or before the Oakland Circuit Court on review of the denial of petitioner’s motion for summary judgment. In fact, by law, the Oakland Circuit Court review was limited to the record developed before the State Tenure Commission on petitioner’s motion for summary judgment. MCL 24.306; MSA 3.560(206). Further, the mere fact that the "job targets” documents and testimony had been admitted into evidence before the board of education, and thus were a part of the record when petitioner’s motion for summary judgment was filed, did not preclude the Ingham Circuit Court from considering that evidence as a basis for petitioner’s claim after a remand on the merits from the Oakland Circuit Court. The rule of the law of the case is distinguishable from the doctrine of res judicata. The former is applicable only when the same point was decided on the previous appeal, while under the doctrine of res judicata all questions which might have been litigated under the issues formed in the case, as well as those actually adjudged, must be taken as at rest forever. 5B CJS, Appeal & Error, § 1822, p 191; see Topps-Toeller, Inc v City of Lansing, 47 Mich App 720, 726-729; 209 NW2d 843, lv den 390 Mich 788 (1973). We can see no valid reason for holding that since petitioner framed the issues for summary judgment, she should be thereafter precluded from asserting diiferent evidentiary support for her claim following trial on the merits. See, e.g., Borkus v Michigan Nat'l Bank, 117 Mich App 662; 324 NW2d 123 (1982), lv den 417 Mich 998 (1983) (where an order of summary judgment is reversed and the case returned for trial because an issue of material fact exists, law of the case doctrine does not apply to the second appeal because the first appeal is not decided on the merits). hi Did the Ingham Circuit Court judge make independent ñndings of fact or, alternatively, was the decision of the State Tenure Commission supported by competent, substantial and material evidence on the record? Respondent contends that the trial court did not apply the standard of review provided by MCL 24.306; MSA 3.560(206), but instead "found” that the district had implied that petitioner would not be discharged during the course of her leave. The substantial-evidence standard embodied in MCL 24.306(1)(d); MSA 3.506(206)(1)(d) requires thorough review of the evidence in an administrative proceeding, not limited to those portions of the record supporting the findings of an administrative agency. Knowles v Civil Service Comm, 126 Mich App 112; 337 NW2d 247 (1983). As such, we disagree with the commission’s statement that "[respondent’s] actions comported with the minimum requirements of the tenure act and that, therefore, the district cannot be held responsible for the resulting reduction in the improvement time set out in the 'job targets.’ ” Minimal compliance with the tenure act cannot be sufficient in the face of a district’s representations concerning what constitutes a reasonable period of improvement. This Court has stated its agreement with the "general principle” prohibiting a teacher’s discharge unless the teacher is first notified of and given a reasonable opportunity, considering all the circumstances, to correct the deficiency. Bd of Ed of Benton Harbor Area Schools v Wolff, 139 Mich App 148, 155; 361 NW2d 750 (1984), lv den 422 Mich 976 (1985). In all the circumstances here, including the district’s grant of petitioner’s leave of absence, the district’s representations that petitioner would have the entire year to improve, and the fact that petitioner was only observed and evaluated, pursuant to the "job targets,” in November of 1978, we conclude that the commission’s finding that there was just and reasonable cause for petitioner’s discharge is not supported by substantial evidence on the record. Accordingly, we reject respondent’s contention that the Ingham Circuit Court made independent findings of fact with regard to the record here. To the extent respondent contends, and the commission held, that attempts to improve petitioner’s performance had begun nearly two years prior to the creation of the job targets, we find the record wholly inadequate to support that contention. Having found that the circuit court had the power to examine the propriety of petitioner’s discharge during her leave of absence and agreeing that the State Tenure Commission’s finding that petitioner was discharged for reasonable and just cause was not supported by the record, the order of the circuit court is affirmed. Affirmed. Const 1963, art 6, § 28; MCL 24.306(1)(d); MSA 3.560(206)(1)(d). MCL 38.101; MSA 15.2001. To the extent the trial court’s reasoning with regard to the application of the law of the case-doctrine is inconsistent with ours, the inconsistency is not grounds for reversal. Where a trial court reaches the right result, this Court will not disturb the result attained even though other reasons should have been assigned. See Queen Ins Co v Hammond, 374 Mich 655, 658-659; 132 NW2d 792 (1965).

Per Curiam. Following a jury trial, defendant was found guilty of assault with intent to commit great bodily harm less than murder, MCL 750.84; MSA 28.279, felonious assault, MCL 750.82; MSA 28.277, two counts of failure to stop at the scene of a personal injury accident, MCL 257.619; MSA 9.2319, and one count of felonious driving, MCL 750.191; MSA 28.661. Defendant appeals as of right, asserting four bases for reversal of his convictions. Defendant contends reversal is mandated because (1) the trial court failed to articulate its reasons for admitting evidence of defendant’s prior felony convictions, (2) the trial court failed to grant defendant a continuance to permit defendant to obtain a different court-appointed attorney, (3) the trial court denied defendant’s request that CJI 4:2:02(7) be read to the jury, and (4) there was insufficient evidence to convict defendant of felonious assault and assault with intent to commit great bodily harm less than murder. We find no error requiring reversal. We address defendant’s claims seriatim. Prior to trial, defense counsel informed the court that defendant intended to take the stand. Defense counsel moved to suppress evidence of defendant’s prior convictions. Counsel informed the court that defendant had two 1983 receiving and concealing stolen property felony convictions and the following misdemeanor convictions: a 1982 conviction for receiving and concealing stolen property under $100, two 1983 joyriding convictions, 1981 convictions for larceny under $100 and attempted larceny under $100, a 1980 conspiracy to commit larceny under $100 conviction, and a 1975 simple larceny conviction. The trial court suppressed evidence of the misdemeanors but allowed admission of evidence of the felony convictions stating, "I’m going to let the two felonies come in.” MRE 609(a)(2) requires that the trial court articulate on the record the factors considered in determining whether to permit a defendant to be impeached with evidence of prior convictions. This Court has held that the failure of the trial court to articulate its discretion on the record does not require reversal where it appears from the record that the trial court was aware of its discretion and the factors relevant to the exercise of that discretion. People v Cook, 131 Mich App 796, 804; 347 NW2d 720 (1984), and People v Dyson, 106 Mich App 90, 98-99; 307 NW2d 739 (1981). See also People v Handley, 422 Mich 859 (1985), rev’g People v Handley (On Remand), 135 Mich App 51; 352 NW2d 343 (1985). In exercising its discretion under MRE 609, the trial court must balance three factors: (1) whether the nature of the prior offense bears directly on credibility; (2) whether it is for substantially the same conduct for which the defendant is on trial; and (3) the necessity of defendant’s taking the stand to present his defense. People v Crawford, 83 Mich App 35, 39; 268 NW2d 273 (1978). While we do not approve of the discretion exercised on the record in the instant case, we believe that the trial court was aware of its discretion as evidenced by suppression of evidence of defendant’s prior convictions for joyriding and prior convictions for larceny offenses. Evidence of defendant’s prior convictions for joyriding were not probative of credibility. Although evidence of the prior larceny convictions were probative of credibility and did not directly relate to a charge for which defendant was on trial, the res gestae of those crimes included defendant’s intended larceny, theft of hubcaps. We decline to reverse. Defendant next claims that he was denied his right to counsel when the trial court refused to grant a continuance, on the date set for trial, in order for defendant to secure different appointed counsel. Defendant contended that his counsel, who was appointed three days previously after defendant requested replacement of his initial court-appointed counsel, was not prepared to proceed with trial. The court inquired of counsel if counsel was prepared to go forward; counsel responded in the affirmative. Counsel further indicated that on the previous Friday defendant indicated to him that he wanted no adjournment and was ready to go to trial. The grant or denial of a continuance rests within the discretion of the trial court. Reversal is mandated only upon an abuse of discretion result ing in prejudice to the accused. People v Gross, 118 Mich App 161; 324 NW2d 557 (1982). In reviewing this question, this Court must consider (1) whether defendant is asserting a constitutional right, (2) whether there is a legitimate reason for asserting the right, (3) whether defendant is guilty of negligence, (4) whether adjournments were at defendant’s behest, and (5) whether prejudice will result to defendant. People v Wilson, 397 Mich 76, 81; 243 NW2d 257 (1976), reh den 397 Mich 962 (1976). Defendant properly contends that he is asserting his constitutional right to effective assistance of counsel. However, this Court views with skepticism a defendant’s repeated claims that successive counsel were unprepared to proceed. People v Taylor, 110 Mich App 823; 314 NW2d 498 (1981). Because defendant informed his counsel the previous Friday that he was ready to go to trial on Monday, and did not want an adjournment, any lack of proper trial preparation was partly a result of defendant’s negligence. We find no abuse of discretion in the trial court’s denial of a continuance. Any abuse of discretion notwithstanding, our review of the record reveals that defendant was represented in a very capable fashion. Defendant claims that the trial court erred in refusing to give CJI 4:2:02(7), which provides that, "[i]f the direct and circumstantial evidence, taken together, is open to reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence.” Use of the instruction at issue is properly confined to cases where the circumstantial evidence against defendant is weak. People v Freeland, 101 Mich App 501; 300 NW2d 616 (1980), lv den 417 Mich 963 (1983). Where there is direct evidence of guilt or where there is, as here, strong circumstantial evidence of guilt, a request for the instruction is properly denied. People v Hatch, 126 Mich App 399, 404; 337 NW2d 79 (1983); People v Reese, 126 Mich App 132, 136; 337 NW2d 7 (1983). We find no error in the trial court’s refusal to give the instruction in the instant case. Defendant’s claim that the prosecutor failed to present sufficient evidence to convict him of felonious assault and assault with intent to do great bodily harm less than murder lacks merit. The defendant contends that the prosecutor failed to prove beyond a reasonable doubt that the two felony assaults with which he was charged were not committed in self-defense. In reviewing a claim that the prosecutor failed to present sufficient proofs to prove a defendant guilty beyond a reasonable doubt, this Court must view the evidence in a light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements were established beyond a reasonable doubt. People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979), cert den 449 US 885; 101 S Ct 239; 66 L Ed 2d 110 (1980). When a defendant introduces evidence of self-defense, the prosecution bears the burden of excluding the possibility that the defendant acted in self-defense. People v Norwood, 123 Mich App 287, 296; 333 NW2d 255 (1983), lv den 417 Mich 1006 (1983). In the present case there was ample evidence from which the jury could conclude that the prosecution had met its burden of excluding the possibility that defendant acted in self-defense. With regard to both assaults, the prosecution introduced evidence showing that defendant was not in danger of death or serious bodily injury and that he used an unreasonable amount of force. Affirmed.

Per Curiam. Defendant appeals by leave granted from the denial of its motion for summary judgment in this employment termination case. Plaintiff was employed by defendant in April, 1977, as Vice President/Loan Officer. His performance was regularly evaluated as satisfactory and he was annually reappointed by defendant’s board of directors. On February 26, 1982, plaintiff received a termination letter stating that his position was being eliminated due to "a change in the direction of our organization with more emphasis being placed on money investment and less on lending.” On September 1, 1982, plaintiff filed a five-count complaint alleging breach of contract, age discrimination, malicious and bad faith termination, interference with employment opportunities and failure to objectively evaluate plaintiff’s performance. Defendant responded with a motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3). As to Count i, defendant asserted that its bylaws, mandated by federal law, governed over any express or implied contract and, further, that plaintiff’s termination was justified for economic reasons. As to Count ii, defendant indicated that a young officer had also been terminated and plaintiff was not replaced, as his termination had been for economic reasons. As to Counts hi and iv, defendant contended that plaintiff failed to allege tortious conduct independent of the alleged breach of contract. As to Count v, defendant noted that plaintiff was not terminated for poor performance and that plaintiff had admitted that the evaluations were not negligently done. Plaintiff responded to the motion by arguing that defendant’s "economic reasons” were pretextual, that defendant should be estopped from relying on its bylaws, and that the termination was contrary to public policy. Plaintiff has asserted that his two predecessors were both laid off after a couple years, before their pensions vested and allegedly for unsatisfactory performance. Acknowledging that in 1981 the mortgage lending market had declined considerably, plaintiff nevertheless has claimed that defendant remained in strong financial condition and did not need to eliminate its chief mortgage loan officer. Plaintiff asserts that defendant’s action was unique amongst savings and loan institutions, most of which were in a weaker financial condition then defendant. On appeal, plaintiff develops the theory of his termination as follows. John Cherpak, defendant’s executive vice president, desired to succeed William Kaper as president. Plaintiff’s age and experience made him a threat to Cherpak’s plans. Therefore, Cherpak and Kaper decided to eliminate plaintiff’s position, and the board of directors rubber stamped the decision. Simultaneously, Cherpak, whose area of expertise was money investments, directed defendant in that direction and also assumed responsibility for the loan department. When Kaper died, Cherpak was the obvious choice as successor and became president of defendant. i Plaintiff’s breach of contract claim is based on Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579; 292 NW2d 880 (1980), reh den 409 Mich 1101 (1980). Plaintiff alleges that he was promised that he would not be terminated as long as he did satisfactory work. Plaintiff claims this promise was orally given by Kaper and by Dr. Robert Scott, chairman of the board of directors. Defendant denies that such a promise was made, although Scott has not submitted an affidavit to that affect and Kaper died without being deposed. More significantly for purposes of this case, a "just cause” or satisfaction contract, if one existed, is at odds with defendant’s by-laws, which provided in part: 5. Officers, employees, and agents Annually at the meeting of the board of directors of the association next following the annual meeting of the members of the association, the board of directors shall elect a president, one or more vice-presidents, a secretary, and a treasurer: . . . The term of office of all officers shall be one year or until their respective successors are elected and qualified; but any officer may be removed at any time by the board of directors. . . . 7. Powers of the board — The board of directors shall have power— (c) To fix the compensation of directors, officers, and employees; and to remove any officer or any employee at any time with or without cause. [Emphasis added.] The above provisions track 12 CFR 544.5, which require federal mutual associations to operate under such provisions until amended by proper procedure. The regulation adopted by the Federal Home Loan Bank Board is authorized by the Home Owners’ Loan Act of 1933, 12 USC 1461 et seq., and has the same pre-emptive effect on state law as a federal statute. Fidelity Federal Savings & Loan Ass’n v de la Cuesta, 458 US 141, 153; 102 S Ct 3014; 73 L Ed 2d 664 (1982). In Ambro v The American National Bank & Trust Co of Michigan, 152 Mich App 613; 394 NW2d 46 (1986), this Court considered a similar question with respect to the National Bank Act and concluded that state contract law was preempted. 12 USC 24 sets forth the authority of directors of national banks with regard to employment of bank officers: "Upon duly making and filing articles of association and an organization certificate a national banking association shall become, as from the date of the execution of its organization certificate, a body corporate, and as such, and in the name designated in the organization certificate, it shall have power— "Fifth. To elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.” [Emphasis added.] This provision has been consistently construed by state and federal courts to preempt state law governing employment relations between a national bank and its officers and to deprive a national bank of the power to employ its officers other than "at pleasure”. Wiskotoni v Michigan National Bank—West, 716 F2d 378, 387 (CA 6, 1983), citing Bollow v Federal Reserve Bank of San Francisco, 650 F2d 1093, 1097, n 3 (CA 9, 1981); Westervelt v Mohrenstecher, 76 F 118, 121 (CA 8, 1896); Kemper v First National Bank in Newton, 94 Ill App 3d 169; 418 NE2d 819 (1981). See also, Alfano v First National Bank of Highland, 111 AD 2d 960; 490 NYS2d 56 (1985). In McGeehan v Bank of New Hampshire, NA, 123 NH 83, 86; 455 A2d 1054 (1983), the New Hampshire Supreme Court stated: "The case law uniformly interprets this section and substantially similar provisions as rendering unenforceable, as against public policy, all contractual provisions which do not allow a national banking association to discharge its officers at will without incurring liability for breach of contract.” We hold that the National Bank Act preempts state law in the area of wrongful discharge and precludes plaintiff from making a Toussaint-based claim for damages against the bank. Accordingly, plaintiff’s breach of contract claim against the bank must fail. [152 Mich App 617, 618.] As to Ambro’s remaining claims, the Court went on to state: We then turn to plaintiff’s tort claims for negligence and failure to exercise good faith. With respect to the cause of action for negligence, plaintiff states in his complaint: "16. Defendants, having established the policies and undertaken the obligations owed to plaintiff as terms and conditions of his employment, as previously set forth in this First Amended Complaint, owed to plaintiff a duty to perform such policies and such obligations in a reasonably prudent manner.” With respect to the cause of action for failure to exercise good faith, plaintiff states in his complaint: "17. Defendants, having established the policies and undertaken the obligations owed to plaintiff as terms and conditions of his employment, as previously set forth in this First Amended Complaint, owed to plaintiff a duty to perform such policies and such obligations in good faith towards plaintiff.” We held above that the bank could not contract to employ its officers other than at the pleasure of the bank’s board of directors. It follows, therefore, that the bank could not assume a duty to perform a contract calling for discharge only for causer. Accordingly, plaintiffs remaining claims against the bank must also fail. The trial court properly granted summary judgment in favor of the bank, pursuant to GCR 1963, 117.2(1). [152 Mich App 618-619.] The analysis and result of Ambro is applicable here, and accordingly we conclude that defendant is entitled to judgment as a matter of law on Counts i, hi, iv and v. Plaintiff makes an effort to salvage Counts i and v by arguing that defendant should be estopped from raising the federally-mandated bylaws as a defense to the alleged contract. Plaintiff claims that he relied upon oral promises of security given by Kaper and Scott in deciding to leave his job in Illinois and return to Michigan to work for defendant. However, in addition to proving reliance, plaintiff must also show that enforcement of the promises are necessary to avoid injustice. Toussaint, supra, p 649 (Ryan, J., dissenting). Here, defendant is not retaining a benefit obtained because of plaintiff’s reliance on the promises, so this is not a case of defendant’s being unjustly enriched. Upon further review of the authority cited in Ambro, supra, we are persuaded that public policy does not require enforcement of the alleged bargain. ii Plaintiff attempts to salvage Count iii by characterizing defendant’s alleged bad faith as the intention to contravene public policy. Plaintiff identifies the violations of public policy as defendant’s viola tions of the Home Owners’ Loan Act of 1933, 12 USC 1461 et seq., the age discrimination in employment act, 29 USC 621 et seq., the federal civil rights act, 42 USC 2000 et seq., and the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. Michigan courts clearly recognize that some grounds for discharging an employee are so contrary to public policy as to be actionable. Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982). The public policy must be clear. Clifford v Cactus Drilling Corp, 419 Mich 356, 367; 353 NW2d 469 (1984) (Williams, C.J., dissenting); Suchodolski, supra, p 696; Schwartz v Michigan Sugar Co, 106 Mich App 471, 479; 308 NW2d 459 (1981), lv den 414 Mich 870 (1982). As to the Home Owners’ Loan Act, plaintiffs claim seems to be that his termination jeopardized defendant’s proper servicing of small home owners’ accounts which the act is intended to protect. We do not find in this claim a sufficiently strong public policy to warrant a civil action for damages. As to the remaining statutes cited by plaintiff, the violation claimed by plaintiff is age discrimination, which claim is raised in Count n. Pursuant to the statutes, plaintiff has a civil action for damages. See MCL 37.2801; MSA 3.548 (801); Ledsinger v Burmeister, 114 Mich App 12; 318 NW2d 558 (1982). Accordingly, plaintiffs Count in does not state a different claim from Count ii, to which we now turn our attention. in Defendant acknowledges that the Home Owners’ Loan Act does not preempt plaintiff’s age discrimination claim. However, defendant claims that plaintiff has offered insufficient proof of age dis crimination to create a genuine issue of material fact, so that defendant is entitled to judgment as a matter of law. We disagree. The courts are liberal in finding that a "genuine issue” does indeed exist. As Honigman & Hawkins correctly comments, (1) the court "will give the benefit of any reasonable doubt to the opposing party” and (2) "the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.” [Rizzo v Kretschmer, 389 Mich 363, 372; 207 NW2d 316 (1973). Emphasis in original.] Plaintiff must show that his age was a "determining factor” in his dismissal, but it need not be the sole factor. Gallaway v Chrysler Corp, 105 Mich App 1; 306 NW2d 368 (1981), lv den 413 Mich 853 (1982). Plaintiff minimally has the circumstantial evidence from which a jury might infer discrimination. On the other hand, defendant’s proofs of economic reasons for the dismissal are not so strong as to take that defense away from the jury and allow the court to award summary judgment to defendant. Affirmed in part and reversed in part. We remand for further proceedings on Count n. The circuit court shall enter an order granting summary judgment for defendant as to Counts i, iii, iv and v.

Per Curiam. Plaintiffs appeal as of right from a circuit court order denying their motion for leave to appeal from an order of the Commissioner of Insurance and from an order granting defendant’s motion for summary judgment pursuant to GCR 1963, 117.2(1). F. W. Grotenhuis Underwriters, Inc. is a Michigan corporation licensed to sell insurance in Michigan. In 1983, Grotenhuis entered into a contract with Blue Ribbon, Inc., a subsidiary of Blue Cross and Blue Shield of Michigan, to market bcbsm health care benefits in exchange for service fees. In July, 1983, defendant became aware of plaintiffs’ "packaging” arrangement and requested information on the proposal. The information submitted by bcbsm revealed that the campaign to sell the packaged benefits would commence on September 1, 1983. In a letter dated September 9, 1983, defendant stated in part: Pursuant to the powers vested in me as Commissioner of Insurance by 1939 P.A. 108 being MCLA 550.301 et seq.; MSA 24.591 et seq. and 1939 P.A. 109 being MCLA 550.501 et seq.; MSA 24.621 et seq., I have determined that bcbsm may not legally enter into any agreements or contracts which contain one or more of the above listed objectionable elements. Therefore, Blue Cross and Blue Shield of Michigan shall cease and desist from entering into any future agreements and/or contracts containing one or more of the above listed objectionable elements. In a letter dated September 20, 1983, bcbsm stated that it would not cease and desist from entering into packaging agreements until defendant provided "specific legal reference as to why such contracts are not legal under PA 108 and 109 of 1939.” A second letter requesting legal authority was sent to defendant by bcbsm on November 3, 1983. In the meantime, defendant learned that bcbsm, its subsidiaries and its agents were conducting marketing seminars throughout the state to solicit licensed insurance agents to market the packaged benefits plans. An affidavit submitted on defendant’s behalf states that bcbsm represented at the seminars that defendant’s letter of September 9, 1983, did not constitute a valid order and did not have to be obeyed and that agents who marketed the package were not in jeopardy of losing their licenses. In response to this information, defendant sent a letter to bcbsm on January 13, 1984, stating: To the contrary, pursuant to the powers vested in me by 1939 P.A. 108, being MCLA 550.301 et seq.; MSA 24.591 et seq. and 1939 P.A. 109, being MCLA 550.501 et seq.; MSA 24.621 et seq., you were specifically ordered to cease and desist from all activity described in the September 9, 1983 order. Had you wished to contest that order, your proper vehicle would have been an appeal pursuant to Revised Judicative Act Section 631. It is my intention to take appropriate sanctions against violations of that order pursuant to my authority under P.A. 108 and 109 of 1939 and the Insurance Code of 1956. On the same day, defendant sent a memorandum to all licensed life and health insurance companies informing them that agents who participated in the bcbsm packaging program could be placing their licenses in jeopardy. On January 23, 1984, bcbsm filed suit in federal district court, alleging a violation of 42 USC 1983 and seeking to enjoin defendant from interfering with bcbsm’s marketing practices. That lawsuit was dismissed on February 23, 1984, on the ground that bcbsm had failed to state a claim upon which relief may be granted. The federal court held that the due process requirements had been met since there were meaningful post-deprivation remedies available, i.e., an administrative appeal pursuant to MCL 600.631; MSA 27A.631. On February 27, 1984, plaintiffs commenced the instant lawsuit in Kent Circuit Court, alleging a violation of due process under US Const, Am XIV, 42 USC 1983, and Const 1963, art 1, § 17. On February 28, 1984, plaintiffs filed a motion in Wayne Circuit Court for leave to appeal the cease and desist order contained in defendant’s letter of September 9, 1983. The Wayne Circuit Court judge denied leave to appeal on the ground that leave to appeal should be sought in the Kent Circuit Court, since the underlying issues had already been raised in that county. On March 29, 1984, plaintiffs moved in Kent Circuit Court for leave to appeal defendant’s September 9, 1983, letter to bcbsm and the January 13, 1984, memo to Grotenhuis. Leave to appeal was denied on May 18, 1984, on the ground that bcbsm was guilty of culpable negligence in filing an untimely appeal. Thereafter, defendant filed a motion for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8). In an opinion dated September 7, 1984, the trial court held that plaintiffs had not been deprived of property without due process of law because there were adequate post-deprivation remedies available to protect plaintiffs’ property interests. An order granting defendant’s motion for summary judgment was entered on November 29, 1984. On appeal, plaintiffs claim that the court erred in denying their motion to appeal defendant’s cease and desist order and memorandum to licensed agents and in granting defendant’s motion for summary judgment. Litigants seeking judicial review of decisions by administrative agencies have three potential avenues of relief: review prescribed in the statutes applicable to the particular agency, appeal pursuant to MCL 600.631; MSA 27A.631 which allows appeals from such decisions to circuit court, or the method of review provided by the Administrative Procedures Act, MCL 24.201 et seq.; MSA 3.560(101) et seq. Nestell v Bd of Ed of Bridgeport-Spaulding Community Schools, 138 Mich App 401; 360 NW2d 200 (1984). Both the Insurance Code of 1956, MCL 500.100 et seq.; MSA 24.1100 et seq., and the Nonprofit Health Care Corporation Reform Act, MCL 550.1101 et seq.; MSA 24.660(101) et seq., provide for review of any final order or decision of the Commissioner of Insurance. Both acts provide that the Administrative Procedures Act governs review of a final order or decision of the commissioner made, issued or executed after a hearing. MCL 500.244; MSA 24.1244; MCL 550.1615; MSA 24.660(615). In this case, a hearing was not held prior to the issuance of the order, and, thus, review of the order is not governed by the provisions of either act. The review of agency orders and decisions under the Administrative Procedures Act is also predicated upon an evidentiary hearing at the administrative level. Since no hearing was held in this case, the Administrative Procedures Act is also inapplicable. Thus, review of defendant’s order in this case is governed by MCL 600.631; MSA 27A.631, which provides: An appeal shall lie from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules from which an appeal or other judicial review has not otherwise been provided for by law, to the circuit court of the county of which the appellant is a resident or to the circuit court of Ingham county, which court shall have and exercise jurisdiction with respect thereto as in nonjury cases. Such appeals shall be made in accordance with the rules of the supreme court. An appeal to the circuit court under this statute is also governed by the Michigan General Court Rules. GCR 1963, 706.1, now MCR 7.104(A). GCR 1963, 701.2 provides that an appeal as of right must be taken within twenty days after entry of the order or judgment. If the time for taking the appeal has expired, the trial court has the discretion to grant leave to appeal upon the appellant’s motion accompanied by an affidavit of nonculpable negligence. GCR 1963, 703. A decision denying a motion for leave to appeal will not be reversed absent- an abuse of discretion. Lapham v Wayne Circuit Judge, 231 Mich 449, 451; 204 NW 101 (1925); Smilansky v Wayne Circuit Judge, 186 Mich 463; 152 NW 1067 (1915); Jewell v Grand Traverse Co Probate Judge, 51 Mich App 134, 142; 214 NW2d 717 (1974). In denying plaintiffs’ motion for leave to appeal, the trial court stated: It is my opinion that the letter of September 9, 1983, from the Commissioner of Insurance to bcbsm telling it to cease and desist from its practices is, in fact, an order; that the proper course of action was an appeal from that order pursuant to § 631 of the Revised Judicature Act. It is my further opinion that bcbsm knew that the letter of September 9, 1983, was a valid appealable order, but instead of appealing, chose to ignore the appellate process and deliberately and intentionally chose another route to follow in filing a suit in federal district court against the Commissioner, alleging a violation of due process. Six months later, bcbsm finally elected to appeal said order in this jurisdiction, having previously elected to appeal in Wayne County Circuit Court on February 18, 1983, after its suit in federal district court was dismissed. It is my opinion that bcbsm was guilty of culpable negligence in waiting all this time to appeal the order of September 9, 1983, and in my discretion, I will deny the motion for leave to appeal. On appeal, plaintiffs argue that they are not guilty of culpable negligence because they did not believe defendant had the authority to regulate bcbsm’s marketing practices. We find this argument without merit. Defendant’s cease and desist order stated: Pursuant to the powers vested in me as Commissioner of Insurance by 1939 P.A. 108 being MCLA 550.301 et seq.; MSA 24.591 et seq. and 1939 P.A. 109 being MCLA 550.501 et seq.; MSA 24.621 et seq., I have determined that bcbsm may not legally enter into any agreements or contracts which contain one or more of the above listed objectionable elements. The letter clearly set forth the statutory authority upon which defendant based her cease and desist order. The proper vehicle for challenging that authority was appeal pursuant to § 631 of the rja. Defendant informed plaintiffs of the proper appellate procedure in its letter dated January 13, 1984. Instead of pursuing an appeal (albeit by leave) plaintiffs filed their federal court action which alleged a denial of due process. It wasn’t until the federal lawsuit was dismissed that plaintiffs sought leave to appeal defendant’s order. This evidences a lack of due diligence on plaintiffs’ part as well as a strategic decision to abandon an appeal in favor of their due process claim. We find no abuse of discretion in the denial of plaintiffs’ motion for leave to appeal. The due process clauses of the United States and Michigan Constitutions apply when government action deprives a person of a liberty or property interest. Edmond v Dep’t of Corrections (On Remand), 143 Mich App 527, 533; 373 NW2d 168 (1985). In Parratt v Taylor, 451 US 527, 540-541; 101 S Ct 1908; 68 L Ed 2d 420 (1981), the United States Supreme Court stated: The fundamental requirement of due process is the opportunity to be heard and it is an "opportunity which must be granted at a meaningful time and in a meaningful manner.” Armstrong v Manzo, 380 US 545, 552; 85 S Ct 1187; 14 L Ed 2d 62 (1965). However, as many of the above cases recognize, we have rejected the proposition that "at a meaningful time and in a meaningful manner” always requires the State to provide a hearing prior to the initial deprivation of property. This rejection is based in part on the impracticability in some cases of providing any preseizure hearing under a state-authorized procedure, and the assumption that at some time a full and meaningful hearing will be available. In suits for deprivation of property without due process filed pursuant to 42 USC 1983, the plaintiff has the burden of pleading and proving the inadequacy of state remedies to redress the wrong. Campbell v Shearer, 732 F2d 531 (CA 6, 1984); Vicory v Walton, 721 F2d 1062 (CA 6, 1983). As we noted above, the deprivation of plaintiffs’ property — the right to market the bcbsm packages —could have been adequately redressed by the circuit court by appeal pursuant to MCL 600.631; MSA 27A.631. Defendant’s failure to provide plaintiffs a predeprivation hearing was warranted by the necessity for quick action. In this case, bcbsm, at defendant’s request, submitted information on the packaging campaign to defendant approximately sixteen days before its implementation. The packaging campaign had already commenced when defendant issued the cease and desist order. The trial court stated: The defendant has alleged as a reason for the necessity for quick action the following: That bcbsm agents are marketing a product for a company which has absolutely no authority to market through agents; that unlike the Insurance Code provisions for insurance companies, bcbsm’s enabling legislation does not contain authority for the use of independent agents to market its coverage in return for commission; that while the Insurance Code allows the use of agents, it strictly regulates those agents and provides that both they and the companies they represent be accountable to the public. Section 460 (MCLA 500.450; MSA 24.1460), and Chapter 12 (MCLA 500.1200 et seq.; MSA 24.11200 et seq.) of the Insurance Code are part of a complex scheme of regulation designed to keep track of and protect the public in an area where there is great potential for and great actual abuse. Bcbsm’s statute contains no grant of authority and no safeguards. The public is in jeopardy when regulated entities such as bcbsm and regulated persons such as insurance agents embark on a course of conduct which leaves consumers open to fraudulent activity without remedy. The public is in jeopardy when a corporation and its agents engage in ultra vires acts. The public is in jeopardy when those ultra vires acts threaten the vitality of legitimate businesses who operate within the law. The Commissioner’s letter was an attempt to maintain the status quo, to preserve the vitality of the life and health insurance markets in Michigan, and to protect subscribers from being ultimately left unprotected from unscrupulous practices before it was too late. It is my opinion that this was an adequate reason for the quick action taken by the Commissioner. We agree. Although plaintiffs were denied a prede privation hearing, the post-deprivation appellate remedy would have provided plaintiffs with a full and meaningful hearing, for the circuit court would have reviewed plaintiffs’ claim that the cease and desist order was not authorized by law. In this case, plaintiffs are unable to plead and prove that the post-deprivation judicial remedies are inadequate or that they do not provide adequate process to remedy the constitutional violation claimed. Plaintiffs have failed to state a claim upon which relief may be granted and defendant is entitled to judgment as a matter of law. Affirmed.

Per Curiam. The issue in this appeal concerns whether a parent of a negligently injured child should be permitted to recover damages against the negligent actor for the loss of society, protection and companionship of the minor child. The trial court ruled that Michigan law does not recognize a cause of action in the parent of a negligently injured child for loss of companionship, society and protection of the child and as a result granted summary judgment to the defendants. We reverse. On October 28, 1984, an automobile struck fifteen-year-old Valera Sizemore as she was riding her bicycle. The automobile was driven by defendant Smock and owned by defendant Peter Alumbaugh, Inc. Valera Sizemore sustained serious injuries as a result of the accident. Valera subsequently filed suit in Genesee Circuit Court to recover for her injuries and her mother, Veda Sizemore, joined in the action. As relevant to this appeal, plaintiffs’ complaint made the following claim for damages against the defendants on behalf of Veda Sizemore: 11. As a result of the above described accident, the Plaintiff, Veda K. Sizemore, sustained the loss of the companionship, society and protection of her daughter as well as the necessity to care for her daughter’s physical needs, and to provide medical care and treatment for her and parental concern regarding the serious injuries her daughter sustained. Defendants promptly moved for summary judgment pursuant to GCR 1963, 117.2(1) against Veda Sizemore, asserting that no Michigan statute or case recognizes a parent’s claim for loss of companionship and society when a child is negligently injured. As previously indicated, the trial court agreed and granted defendants’ motion. The court also determined that Veda did not have a cause of action for attending to her child’s medical needs, because she is compensated through the no-fault insurance act for such expenses, making a separate action unnecessary. Plaintiff Veda Sizemore now appeals as of right. In Berger v Weber, 411 Mich 1; 303 NW2d 424 (1981), our Supreme Court recognized a cause of action on the part of a child for loss of parental society and companionship when a parent is negligently injured. The Court reasoned that existing judicial and legislative policies concerning the value of the parent-child relationship warranted recognizing a child’s cause of action for loss of society and companionship of a negligently injured parent. Id., p 13. However, the Michigan courts have never expressly recognized a similar cause of action in favor of a parent to compensate a parent’s corresponding loss when a child is injured. Id., p 31 (Levin, J., dissenting). Michigan case law does recognize a distinct cause of action in favor of the parents of a wrongfully injured child, but recovery has always been limited to the parents’ loss of services and expenses incurred. See Gumienny v Hess, 285 Mich 411; 280 NW 809 (1938). Analogizing and expanding the reasoning in Berger to the present case, plaintiff argues that this Court should now explicitly recognize a cause of action in favor of the parent for the loss of society and companionship of a negligently injured child. Defendants maintain, however, that, because there are significant differences between the loss to a child of a parent’s companionship and society in terms of the possible effect on a child’s development and the loss to a parent of a child’s companionship, we should not recognize such a claim on behalf of a parent. Defendants further contend that recognition of such a cause of action would proliferate litigation because we would allegedly be required to recognize in future cases a similar cause of action on behalf of brothers, sisters, cousins, aunts, uncles, close friends and numerous others. We find defendants’ arguments to be unpersuasive. Under the Michigan wrongful death act, MCL 600.2922; MSA 27A.2922, a parent may collect for the loss of society and companionship when their child is killed as a result of the negligent acts of another. Hebert v Cole, 115 Mich App 452, 455-456; 321 NW2d 388 (1982), lv den 417 Mich 863 (1983). In fact, a similar anomaly was in part the reason in Berger why our Supreme Court decided to recognize a child’s cause of action for loss of parental society and companionship. The Court stated: We are satisfied that the real anomaly is to allow a child’s recovery for the loss of a parent’s society and companionship when the loss attends the parent’s death but to deny such recovery when the loss attends the parent’s injury. [Berger, supra, P 15.] Clearly, when a child is negligently injured a corresponding "injury” to the parent is within the foreseeable risk of harm, see Welke v Kuzilla, 144 Mich App 245, 253; 375 NW2d 403 (1985), and whether a child is injured or killed the loss suffered by the parent can be devastating. In the case of injury, the quality of the parent-child relationship can be seriously impaired. The recognition of a cause of action in favor of the parent for loss of a child’s society and companionship merely attempts to compensate the parent, however inadequately, for such a loss. While no Michigan case has directly considered a parents’ cause of action for loss of society and companionship, several other states have recognized such a cause of action. See Anno: Parent’s Loss of Child’s Society and Companionship as Element of Damage for Injury to Child, 69 ALR3d 553. At least three states have provided for such a claim by statutory enactment. Idaho Code, § 5-310; Washington Rev Code, § 4.24.010; Iowa Rules of Civil Procedure, 8. In Shockley v Prier, 66 Wis 2d 394; 225 NW2d 495 (1975), the Wisconsin court expressly overruled prior authority and held that a parent may maintain an action for loss of aid, comfort, society and companionship of an injured minor child, so long as the parents’ cause of action is combined with that of the child for the child’s personal injuries. The court decided to recognize such a cause of action due to a changed economic climate and altered perceptions of the parent-child relationship which once limited the parents’ remedy to a loss of the minor’s earning capacity during minority. According to the Wisconsin court, society and companionship between parents and their children is closer to our present-day family ideal and, therefore, parents should be compensated for the shattering effects negligently inflicted injuries to the child will have on the parent-child relationship. However, still other jurisdictions have refused to recognize a cause of action in the parent for loss of society and companionship of an injured child. See 69 ALR3d 553, § 3, pp 555-559. Most notable among these jurisdictions is California. Baxter v Superior Court of Los Angeles Co, 19 Cal 3d 461; 138 Cal Rptr 315; 563 P2d 871 (1977). In Baxter, the court stated that for policy reasons, in particular the intangible nature of the injury and the danger of multiplication of claims and liability, it was declining to enlarge a parent’s cause of action to permit recovery for the loss of affection and society. California law does, however, permit a parent to recover for intentional interference with the parent-child relationship. See Rosefield v Rosefield, 221 Cal App 2d 431; 34 Cal Rptr 479 (1963). Thus, the other jurisdictions are split on recognizing a parent’s cause of action for loss of society and companionship of an injured child, with the jurisdictions recognizing such a claim apparently in the minority. In this case, we believe that Michigan law sufficiently favors the parent-child relationship to permit a parent to recover for lost society and companionship of a negligently injured child. In modern society, children are no longer viewed as financial assets, but their companionship and society are cherished. We recognize that there are fundamental differences between the dependency of a child on a parent and the dependency of a parent on a child, but do not believe that such differences should preclude recovery by a parent for the loss of society and companionship of a child injured by the negligent acts of another. Unlike the defendant, we do not believe that the recognition of such a cause of action will unnecessarily proliferate litigation or place an unfair financial burden on society. Further, whether a similar cause of action should be recognized in favor of brother, sister, and other relatives is not before us and thus the resolution of that issue must await future cases involving real controversies. In summary, we hold that under Michigan law a parent can maintain a cause of action for loss of aid, comfort, society and companionship of their minor child against a negligent tortfeasor. In addition, like the Wisconsin court, we believe that, to be fair to the defendant, the parent’s cause of action should be combined with that of the child for the child’s personal injuries. Therefore, in this case, the trial court erred in dismissing plaintiff Veda Sizemore’s cause of action against the defendants for loss of society and companionship of her negligently injured child. Finally, we agree with defendants’ contention that plaintiff Veda Sizemore’s exclusive recovery for her daughter’s medical expenses is under the no-fault insurance act, MCL 500.3107; MSA 24.13107. The no-fault act permits a parent to recover for the necessity of attending to an injured child. See Van Marter v American Fidelity Fire Ins Co, 114 Mich App 171, 178-181; 318 NW2d 679 (1982). Therefore, plaintiff must collect for the necessity of attending to her injured child’s physical needs through the no-fault insurance system and a separate action does not exist against the defendant. In conclusion, having found that plaintiff can assert a cause of action in Michigan for the loss of society and companionship of a negligently injured child, we accordingly reverse the judgment of the trial court and remand this case for reinstatement of Veda Sizemore’s claim and further proceedings. Reversed and remanded.

R. L. Tahvonen, J. On December 29, 1983, Michigan Bell Telephone Company filed, with appellee Michigan Public Service Commission, a request for authority to issue securities. The request was on behalf of a then unformed, wholly owned subsid iary which became appellant Michigan Bell Communications, Inc. (mbci) when formed on March 8, 1984. The purpose of mbci was to market and service business and residential customer premises equipment (cpe) and act as one of the nonexclusive sales agents for certain of Michigan Bell’s central office services. Michigan Bell’s original application was amended March 8, 1984. Mbci requested authority from the psc to issue and sell one share of $1 par value stock to Michigan Bell and receive up to $5,000,000 of equity contribution to be used for corporate purposes. At the same time, however, mbci and Michigan Bell reserved their objection to any regulation of mbci’s issuance of stock and securities, based on the ground that the issuance was not subject to 1909 PA 144, MCL 460.301(1); MSA 22.101(1) (§ 301[1]). Alternatively, they reserved their objection to regulation based on a theory that jurisdiction over mbci’s issuance of stock or securities had been preempted by federal regulation. A psc hearing officer directed the parties to brief the issue of the jurisdiction of the psc to regulate mbci’s offering of securities. After an April 9, 1984, public hearing, the hearing officer issued a report and recommendation on May 10, 1984. The recommendation was that the psc find it did not have jurisdiction to regulate the issuance of securities by mbci. That recommendation was based on a finding that mbci would not conduct an integral part of the business of Michigan Bell. The hearing officer concluded that under Michigan Gas Storage v Public Service Comm, 405 Mich 376; 275 NW2d 457 (1979), reh den 406 Mich 1118 (1979), and Indiana & Michigan Power Co v Public Service Comm, 405 Mich 400; 275 NW2d 450 (1979), reh den 406 Mich 1119 (1979), mbci was not subject to the psc’s regulatory authority. The recommendation was also based on a finding that mbci was not a public utility subject to regulation under § 301(1), citing Ram Broadcasting of Michigan, Inc v Public Service Comm, 113 Mich App 79; 317 NW2d 295 (1982). Finally, the hearing officer rejected the psc staff’s argument that regulation of mbci’s issuance of securities was necessary to monitor the intercompany transactions between Michigan Bell and mbci to protect Michigan Bell customers from improper cost subsidization. The basis for this rejection was that Michigan Bell rate cases were adequate for that purpose. The psc issued its August 1, 1984, opinion and order rejecting the hearing officer’s report and recommendation and asserting jurisdiction over mbci’s issuance of securities. The psc gave approval for the requested issuance of securities, but required mbci to file a report as to the actual terms and conditions of the issuance, asserting the psc’s authority to review mbci’s books and records relating to intercompany transactions, and requiring mbci to file a list of shared administrative services, including equitable cost accounting and allocation procedures that would properly identify costs to be charged to Michigan Bell. The basis for the psc’s assertion of jurisdiction was § 301(1), which provides as follows: A person, corporation, or association, or a lessee or trustee of a corporation or association, except a municipal corporation or the owner of a renewable resource power production facility as provided in section la, organized or authorized to do business under the laws of this state, owning, conducting, managing, operating, or controlling a plant or equipment within this state used wholly or in part in the business of transmitting messages by telephone or telegraph, producing or furnishing heat, artificial gas, light, water, or mechanical power to the public, directly or indirectly, a railroad, interurban railroad, or other common carrier, or a corporation, association, or individual exercising or claiming the right to carry or transport natural gas for public use, directly or indirectly, or petroleum oil by or through a pipeline or engaged in the business of piping or transporting natural gas for public use, directly or indirectly, or engaged in the business of purchasing natural gas for distribution may issue stocks, bonds, notes, or other evidences of indebtedness payable at periods of more than 12 months after the date of issuance, if necessary for the acquisition of property, the construction, completion, extension, or improvement of facilities or for the improvement or maintenance of service or for the discharge or lawful refunding of obligations and may issue stock to represent accumulated earnings invested in capital assets and not previously capitalized, if the Michigan public service commission issues an order authorizing the issue and the amount of the issue, and states that in the opinion of the commission the use of the capital or property to be acquired to be secured by the issue of the stock, bonds, notes, or other evidences of indebtedness, is reasonably required for the purposes of the person, corporation, or association, or that the issue of the stock fairly represents accumulated and undistributed earnings invested in capital assets and not previously capitalized. Appproval of securities does not presume that the projects to be constructed or property to be acquired will be included in the company’s rate base. The psc found that mbci was a corporation organized or authorized to do business under the laws of this state, owning, conducting, managing or controlling a plant or equipment within the state used wholly or in part in the business of transmitting messages by telephone. Therefore, this issuance of stock was subject to psc approval. Under both Michigan Gas Storage and Indiana & Michigan Power, a wholly owned subsidiary not subject to rate regulation by Michigan could be subjected to securities regulation if it conducted an integral part of the regulated parent’s business. The psc found that mbci was doing an integral part of Michigan Bell’s business because cpe was held to be an essential link in customers’ telephone service. The psc also found that mbci’s activities could have significant impact on Michigan Bell’s investors and ratepayers. Finally, the psc recited the facts of an unidentified case it had recently decided in which a regulated entity, Michigan Consolidated Gas Company, requested permission to invest in a nonregulated entity, the Detroit Riverfront Development. As a requirement for approval of that investment, the psc required the regulated entity to file a list of shared administrative services related to such activities. The psc found "similar protections” were appropriate in this case, thus justifying the imposition of the reporting requirements on mbci as detailed above. After an unsuccessful application for rehearing was denied by opinion and order of November 6, 1984, mbci filed an application for leave to appeal with this Court on November 7, 1984. For the reasons explained below, we hold that the psc was without jurisdiction to regulate mbci’s issuance of securities and reverse the psc’s opinion and order of August 1, 1984. Analysis of the actions of mbci and regulatory actions and powers relative to mbci requires a determination of the question of whether mbci’s corporate existence is to be recognized or disregarded. Under Gottlieb v Arrow Door Co, 364 Mich 450, 452; 110 NW2d 767 (1961), the corporate form and separate existence of even a one-person, wholly owned corporation should be recognized absent some showing of fraud, sham or other improper use of the corporate form justifying a court’s piercing the corporate veil. The record before the psc, brought to this Court, is absolutely devoid of any basis for disregarding the separate legal existence of mbci. In fact, at oral argument, the parties agreed that, in the course of federal divestiture proceedings, Michigan Bell’s entry into the cpe market through such a wholly owned subsidiary was contemplated both by the courts and the Federal Communications Commission. This Court’s duty when interpreting a statute is set forth in In re Condemnation of Lands, 133 Mich App 207, 210-211; 349 NW2d 261 (1984): In our endeavor to find the appropriate meaning of the phrase "ultimate award”, we begin with the basic rules of statutory construction. The primary object of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Franks v White Pine Copper Division, Copper Range Co, 122 Mich App 177, 183; 332 NW2d 447 (1982). The language of the statute is the best source for ascertaining this intent. Espinoza v Bowerman-Halifax Funeral Home, 121 Mich App 432, 436; 328 NW2d 657 (1982). Statutes must be construed according to the common and approved usage of the language. A resort to dictionary definitions is an appropriate method of achieving this result. Fenton Area Public Schools v Sorenson-Gross Construction Co, 124 Mich App 631, 639; 335 NW2d 221 (1983). There is nothing in the language of the statute which suggests that rate regulation is necessary before there can be securities regulation, and both Michigan Gas Storage and Indiana & Michigan Power specifically held that there could be securities regulation without rate regulation. Thus, the fact that mbci’s rates are not regulated by the psc is not determinative of the jurisdictional issue raised in this case. The first issue is whether, under the statute as interpreted in Michigan Gas Storage and Indiana & Michigan Power, the entity to be regulated must be a public utility. It is obvious that, if an entity is a public utility, the statute applies. Thus, there are two questions which may be answered by the same analysis. First, is mbci a public utility for the purposes of the statute? Second, are some entities, like mbci, even if they are not public utilities, still subject to regulation under the statute because they conduct an integral part of their parent utility’s business? The answer to both questions is to be found in Michigan Gas Storage, 405 Mich 384-385, 387, 391-392: Evidence adduced at the hearing by [Michigan Gas] Storage Company established that it is a corporation organized and existing under the laws of the State of Michigan and is a wholly owned subsidiary of Consumers Power Company. As authorized by its articles of incorporation, Storage Company is engaged in the purchase and transportation of natural gas in interstate commerce and the sale of such gas at wholesale for resale for ultimate public consumption. Storage Company purchases its natural gas supply from Panhandle Eastern Pipe Line Company and sells it to its sole customer, Consumers Power Company. Comsumers Power Company is a public utility which operates in the State of Michigan and sells gas at retail to the public for domestic, commercial and industrial use. As a natural gas company transporting and selling gas in interstate commerce, the operation of Storage Company was within the jurisdiction of the Federal Power Commission (fpc) under the regulatory powers granted in the Natural Gas Act, 15 USC 717 et seq. At the time this case was initiated, the Federal Power Commission was the regulatory authority under the Federal Power Act. Under 42 USC 7101 et seq., the Department of Energy Organization Act, the functions of the fpc were transferred to the Department of Energy and the Federal Energy Regulatory Commission. * * * As established at the hearing, it appears that Storage Company’s operations consist of the purchase, transportation, storage and sale of natural gas. The Company’s supply of gas is purchased from an interstate pipe line company. All of that gas is then sold to Consumers Power Company which owns all of the outstanding stock in Storage Company. There is no evidence in the record that Storage Company owns any facilities or significiant assets that are located outside the state. Nor is there any evidence whether, or how much, if any, of the gas sold to Consumers is ultimately consumed outside the state. As a company engaged in the purchase and transportation of natural gas acquired from an interstate pipe line, which gas is sold at wholesale for resale, Storage Company is subject to the provisions of the Federal Natural Gas Act, supra. Under that act the Federal Power Commission exercised regulatory authority over Storage Company’s rates, services and facilities. The Michigan Public Service Commission does not assert jurisdiction over these aspects of the Company’s activities. Storage Company makes an additional argument that, based on the language of MCL 460.301; MSA 22.101, the Commission does not have jurisdiction over its securities. The Company urges that it is not a public utility for state law purposes because the Commission does not exercise jurisdiction over its rates and, more specifically, that it is not "[a] corporation . . . exercising or claiming the right to carry or transport natural gas for public use, directly or indirectly . . . .” It suffices to say that we agree with the Court of Appeals that the clear import of the language of the statute is to include a company like Storage Company. It is a wholly owned subsidiary of a utility operating within the state and, pursuant to its articles of incorporation, it sells gas only to that company, thereby conducting an integral part of the business of its parent of serving the people of this state. We hold that Storage Company is within the jurisdiction of the Commission granted by MCL 460.301; MSA 22.101. Storage Company, the subsidiary in Michigan Gas Storage, was a utility and did conduct an integral part of its parent’s business. It purchased and transmitted natural gas under a comprehensive regulatory scheme, which identifies it as a utility. See Williams v Standard Oil Co, 278 US 235; 49 S Ct 115; 73 L Ed 287 (1929). The wholly owned subsidiary bought natural gas solely for the purpose of selling it to its parent, and its parent bought all the natural gas the subsidiary provided. By comparison, and in striking contrast, the cpe market is one open to a broad spectrum of vendors and servicers under the federal deregulation and divestiture of American Telephone & Telegraph. Mbci’s rates and practices, along with those of. other retail vendors of cpe, are essentially unregulated. Mbci is not a utility for purposes of § 301(1). Neither can this Court find that mbci conducts an integral part of Michigan Bell’s business. Michigan Bell must, of course, have some sort of equipment from which and to which to transmit telephone messages. However, provision of that equipment is denied Michigan Bell under the federal divestiture actions. It does not make sense that an integral part of a corporation’s business could be an activity in which the business is forbidden to engage. Further, by analogy, every kind of appliance which used electric power would have to be considered an integral part of the business of generating and supplying electrical power to the public, but such an expansive interpretation of the word "integral” seems unwarranted in light of the facts of Michigan Gas Storage and Indiana & Michigan Power. This confirms the dictionary definition of "integral”: "Essential to completeness . . . lacking nothing essential . . . .” Webster’s New Collegiate Dictionary (1973), p 600. Another telling blow against the psc’s argument is the apparently uncontested fact that Michigan Bell continued in business after January 1, 1984, without conducting cpe vending operations. The psc’s argument that a different but related corporate entity was conducting the cpe operation again would have this Court ignore separate corporate identities without any basis in fact or law. Finally, the psc argues that cpe is an integral part of Michigan Bell’s business because of MCL 484.51; MSA 22.1431, which requires a telephone company to provide telephones. In light of the fact that federal authorities have precluded Michigan Bell from offering cpe, the state regulation must be invalid because it is preempted. Florida Lime & Avocado Growers, Inc v Paul, 373 US 132; 83 S Ct 1210; 10 L Ed 2d 248 (1963). Since mbci is neither a public utility nor a public entity conducting an integral part of the business of a public utility, § 301(1) does not give authority to the psc to regulate its issuance of securities. Assuming for the sake of argument that mbci were not excluded from psc regulation under § 301 despite the foregoing arguments, mbci’s interpretation of the statute is correct and again precludes the psc’s exercise of securities-regulation jurisdic tion. The statute would allow the psc’s regulation of " . . . [a Michigan] corporation . . . owning, conducting, managing, operating or controlling a plant or equipment within this State used wholly or in part in the business of transmitting messages by telephone ... to the public, directly or indirectly . . . .” Mbci argues that the plant or equipment must be owned, conducted, managed, operated or controlled while the plant or equipment is being used in the business of transmitting messages by telephone to the public, directly or indirectly. This intepretation appears correct to the Court, again because a contrary interpretation would require an unwarranted regulatory intrusion into markets not involving utilities and the need for special regulation because of their monopolistic characteristics. The psc claims authority from other statutes but, even if there were some other jurisdiction over mbci under the statutes, jurisdiction under them would not give the psc jurisdiction to regulate mbci’s issuance of securities. Moreover, those arguments depend upon this Court’s willingness to disregard mbci’s separate corporate existence, which this Court has already determined it will not do. The psc’s policy arguments in support of regulation of mbci’s issuance of securities are also without merit. The mere fact that the psc can list reasons for its regulatory oversight of mbci does not constitute a statutory basis upon which this Court can find jurisdiction for the psc to engage in such regulatory oversight. Moreover, there is no reason to suppose that Michigan Bell is so unsophisticated or unwise that it needs protection as an investor, and there is no reason that Michigan Bell’s ratepayers cannot be fully protected in Michigan Bell rate cases. Were this Court to intepret §301(1) so as to allow the psc to regulate mbci’s issuance of securities to Michigan Bell, we believe the statute would be preempted by federal law. Under United States v Western Electric, 552 F Supp 131 (D DC, 1982), afFd sub nom Maryland v United States, 460 US 1001; 103 S Ct 1240; 75 L Ed 2d 472 (1983), all of Michigan Bell’s functions concerning provisions of cpe ceased January 1, 1984. Under the terms of the order resulting in the telephone company divesture, Michigan Bell was permitted to enter the cpe market only through a fully separated subsidiary with separate accounting provisions or a separate division. Mbci falls within the former category. The federal rulings were followed by FCC Rule, 47 CFR § 64.702(d): A carrier subject to the proscription set forth in paragraph (c) of this section: (4) Must obtain Commission approval as to the manner in which the separate corporation is to be capitalized, prior to obtaining any interest in the separate corporation or transferring any assets, and must obtain Commission approval of any modification to a Commission approved capitalization plan. "Federal regulations have no less preemptive effect than federal statutes.” Fidelity Federal Savings & Loan Ass’n v De la Cuesta, 458 US 141, 153; 102 S Ct 3014; 73 L Ed 2d 664 (1982). Applicable law in deciding whether federal law preempts state law was outlined in Attorney General v Beta-X Corp, 103 Mich App 51, 54; 302 NW2d 596 (1981), lv gtd 412 Mich 853 (1981), appeal dismissed with prejudice, 414 Mich 942 (1982): Plaintiff notes that the Federal and state legislation embodies a similar legislative intent, in effect, the protection of innocent investors in the targeted corporation. Piper v Chris-Craft Industries, Inc, 430 US 1; 97 S Ct 926; 51 L Ed 2d 124 (1977), Gerber Products Co v Anderson, Clayton & Co, 76 Mich App 410; 256 NW2d 754 (1977). Due to the similar legislative intent so identified, plaintiff argues that greater investor protections of the state act are not preempted. However, merely finding similar state and Federal intent does not foreclose Federal preemption of otherwise conflicting state laws. Indiana & Michigan Power Co v Public Service Comm, 405 Mich 400, 415; 275 NW2d 450 (1979). Where state and Federal statutes have the same underlying purpose, the state law is preempted if the means chosen by the state to achieve the purpose interfere with the means chosen by Congress. In such a case, "the state policy may produce a result inconsistent with the objective of Federal statute”. Rice v Santa Fe Elevator Corp, 331 US 218, 230; 67 S Ct 1146; 91 L Ed 1447 (1947), Indiana & Michigan Power Co, supra. See also De Canas v Bica, 424 US 351; 96 S Ct 933; 47 L Ed 2d 43 (1976). The psc’s brief includes, as Appendix a, a copy of mbci’s interim capitalization plan submitted for approval to the fcc. If the state policy — approval of capitalization plan by approval of issuance of securities — may produce a result inconsistent with the objective of the federal statute (rule), the state statute is preempted. Rice, supra. Here, the state asserts its capacity to disallow securities issuance if there would be, in the psc’s judgment, either undercapitalization or overcapitalization. This obviously might conflict with the federal objective of allowing the fcc to make such determinations. Moreover, once the fcc approves a capitalization plan, any decision by the psc other than simply rubber stamping the fcc would amount to a con flicting ruling. The psc has provided authority for the proposition that the fcc has expressed its will that the states be allowed to regulate in some areas. However, the undisputed exercise of the Fee’s authority in the area of approving mbci’s capitalization plan requires this Court to hold that, to the extent state law could be interpreted to allow the psc to regulate mbci’s issuance of securities, the field has been preempted. In light of our disposition of the previous issues, we need not decide whether the psc’s reporting requirements, imposed as a condition of securities issuance approval, were improper. We would note, however, that under MCL 460.301(3); MSA 22.101(3), the psc may, in connection with its approval of an issuance of securities, impose reasonable terms and conditions. The very structure of the statute suggests that the psc’s expertise should be the basis for determining what conditions may be attached, and the facts on the record of financial and managerial interrelationship would be sufficient to support the psc’s imposition of such reporting conditions. Indeed, if the psc wished to impose similar conditions on Michigan Bell, this Court can see no bar under the statute. Michigan Bell raises another argument which we need not decide. MCI Telecommunications Corporation and GTE Sprint Communications Corporation applied to the psc for approvals to do business. In an order of April 23, 1985, the psc found that both entities were public utilities and were subject to its regulatory jurisdiction. The psc went on, however, to exempt both of them from the requirements of §301(1). Michigan Bell argues that it was arbitrary, capricious, inconsistent and discriminatory not to similarly exempt mbci. We have not been provided with any record to allow us to analyze the similarities and differences be tween the corporate structures, business operations and applicable federal regulations involving the two companies complained of as compared with mbci. In addition, the psc’s opinion with respect to those two entities, a copy of which was appended to mbci’s supplemental brief, illustrates that the companies have a national operation. Under Western Union Telegraph Co v Public Service Comm, 127 Mich App 88; 338 NW2d 731 (1983), the psc found that securities regulation might well be obviated because of the operation of the Commerce Clause, US Const, art I, § 8, cl 3. The decision has not been shown to be erroneous, nor has it been shown to be arbitrary, capricious, inconsistent or discriminatory when compared to the psc’s decision to regulate mbci’s issuance of securities. For the reasons set forth in this opinion, the psc’s decision is reversed because the psc does not have jurisdiction over mbci’s issuance of securities under Michigan law and because, in any event, the field has been preempted by federal law. Reversed.