Datasets:

aidos-lab

/

mich-embeddings-binary-mixed-bread-large

like 0

Follow

aidos-lab 4

Campbell, C. J. This is an application for a mandamus to compel the Auditor General to pay over to Gratiot county certain moneys claimed to have been unlawfully charged to the county, and deducted from the amounts paid over on annual settlements. These moneys now demanded are made up of charges for deficiencies on re-sales of State tax bids, under the statute of 1869, which was supposed to have made counties responsible for all losses on sales of State tax lands held for more than five years. The statute was in the case of the Auditor General v. The Supervisors of Monroe, 36 Mich., 70, held insufficient to authorize such charges. It appears from the application and return before us that of the sums of which restitution is now sought, $593.23 was charged over November 30, 1869; $305.58, November 30, 1870; $225.72, November 30, 1871; $118.24, November 30, 1872; $60.71, November 30,1873; and $14.39 June 30, 1874. It further appears that every year from October, 1869, to November, 1875, a cash balance varying in different years from a little over $3000 to more than $9000 a year was paid over by the State to the county, and that in each of those payments the amount was arrived at under the statute which directs the Auditor General to state the accounts between the State and county. The amounts claimed to have been unlawfully retained were all set forth in these statements, and the whole properly made known to the county authorities, who never complained and never sought a correction of the statements until recently, and who from year to year levied State taxes upon the basis of the auditor’s apportionments, without asserting any claim to diminution. : In the • Monroe county case the State was the complaining party, and • we declined to interfere by mandamus to compel the county to raise money for charges that we held to be without sanction of law. But the case before us is very different. This is substantially a proceeding to recover back from the State money paid into the Treasury and held there originally under a mutual mistake of law, both parties acquiescing, and both being under.the same misapprehension. And furthermore the payment was in pursuance of an adjustment of accounts by the head of an Executive Department of the State whose action is not judicial and is not therefore subject to any direct proceedings for review in this court or elsewhere. Auditor General v. Pullman Palace Car Co., 34 Mich., 59. It would be a matter worthy of very serious consideration whether a mandamus can be regarded as an admissible remedy to interfere ’ with matters of a purely public and executive nature, where the Auditor’s action is not purely mechanical, but involves the exercise of mixed functions. The only cases in which the writ has issued from this court hitherto against that functionary are cases of strict right where his action was plainly unlawful, or where there was some duty involved to do or not to do the act in dispute. In most instances affecting private or corporate rights no discretion could lawfully be given which would interfere with private remedies. And in a large class of his duties the statutes are specific enough to relieve the controversies which may-arise from any conflict of jurisdiction. Cases of this kind are found in People ex rel. St. Mary's Falls Ship Canal Co. v. Aud. Gen., 7 Mich., 86, where the State had contracted to remit taxes on canal lands; People ex rel. Throop v. Aud. Gen., 9 Mich., 134, where military bounty lands were held exempt; People ex rel. Houghton County v. Auditor Genl., 9 Mich., 141, where specific taxes were payable to the county; Michigan Southern & N. I. R. R. Co. v. Aud. Gen., 9 Mich., 448, ■which was an injunction bill to restrain levying specific taxes; Smith v. Aud. Gen., 20 Mich., 398, also an injunction bill; Jackson. Mining Co. v. Aud. Gen., 32 Mich., 488, also a proceeding to prevent the collection of an unlawful specific tax. While there is no doubt some difficulty in drawing with precision any exact line of jurisdiction, we think it very clear that where money has gone into the State treasury, not as a separate and independent item wrongfully received, but as part of a general balance rightfully received, the recovery of it from the State, if not voluntarily allowed within the authority of some proper officer, must fall within the same rules that- would apply to any other pecuniary demands against the State. If this money had been found in a city or county treasury among the book balances or other charges or credits, or if it had been retained by an individual upon an error in stating accounts, it could not be distinguished from other causes of action usually prosecuted in a suit for money had and received. It is simply so much money kept back out of the collections made by the State for the benefit of the county. If the State could be sued, it would certainly not be a proper case for mandamus. The fact that actions will not lie against the State does not change the nature of the claim, or make it anything but a State debt. The doctrine is well settled that where, a State sues it is limited in its recovery by any defenses which might be set up against individual plaintiffs. Michigan State Bank v. Hastings, 1 Doug. (Mich.), 225; Michigan State Bank v. Hammond, Id., 527. But no State can be sued without its own consent, in its own courts, and a suit cannot be maintained against any body, which is really and intrinsically an action against the State. Same cases. Under the constitution of this State all claims not otherwise provided for by general law must be examined and adjusted by the Board of State Auditors. Constitution, Art. 8, sec. 4. Over that Board we have no con trol. People ex rel. Dewey v. Board of State Auditors, 32 Mich., 191. It would therefore be beyond our province to discuss the effect on these claims of the great delay, or of the continued and repeated acquiescence of the county authorities. If, as we have before suggested, the State cannot be sued on claims against it, there would be no power in the courts to review the action of any officer or tribunal to which the State sees fit to confide the auditing of such claims, where the duty is anything but ministerial. Executive discretion is not open to judicial review. Sutherland v. Governor, 29 Mich., 320; Aud. Gen. v. Pullman Palace Car Co., 34 Mich., 59. We think there is no remedy in this case by mandamus, and it must be denied. But the case is not one in which under the circumstances we think it necessary to give costs, as the question is new and its settlement important for the general interests. The other Justices concurred.

Marston, J. This was an action of trespass on the case to recover damages for alleged negligence and want of skill of defendants who were surgeons, in their treatment of a severe injury to plaintiff’s hip. Errors are assigned based upon the ruling of the court in relation to the admissibility of certain evidence, and these questions will first be considered. It was claimed on the part of the defendants that plaintiff soon after being taken to Detroit, threw off the splints, got up and walked about on crutches. He was asked if he had not caused a letter to be written to Frank Curtis by one of the hospital nurses in Detroit to that effect, and replied thereto that he did not remember. líe was then asked if he did not, after his return to Kalamazoo, cause Curtis to write to this same person. This was objected to and the objection sustained. The question was asked for the purpose of identifying the. person who had written the letter, if any, for him in Detroit, and for this purpose the question was proper and the witness should have been permitted to answer. Dr. Walker, a witness, was asked if he remembered on one occasion when the plaintiff got up and threw off his splints, and replied that he did not of his own knowledge. Tie was then asked if in a conversation with Dr. McGraw at Detroit he did not state to him ‘that shortly after Burgett went to Detroit he threw off his splints and got up unbeknown to them who had charge of him.’ This was objected to, when counsel in reply to a question asked by the court, stated this question was asked for the purpose of showing what course the plaintiff himself took with reference to this injury, — to show in other words how a displacement might very easily have occurred. While it would have been proper to show that a displacement had or might have occurred in this way, yet the fact of the plaintiff’s getting up could not be proven in this manner. The witness having no personal knowledge of the fact, his statements upon that subject to others for the purpose claimed would be inadmissible. John Blaney was present at the time Dr. Stillwell first examined the plaintiff, and assisted the doctor on that occasion. It became and was a material question on the trial, whether the injury was a dislocation of the hip joint with a fracture of the lower posterior rim of the acetabulum, or, as stated by others, a dislocation of the femur with the head of the bone in the ischiatic notch, or a fracture of the neck of the femur with the leg driven backwards. Dr. Stillwell concluded that, the injury was a fracture of the neck of the femur, and acted accordingly, although it seems the treatment in either case would be very much alike. The expert tes timony was that if after such an accident the surgeon on examination and manipulation of the limb should get distinct crepitus, that would be positive evidence of a fracture, and the probable fracture would be the neck of the femur or of the acetabulum, and that the diagnosis in such cases is extremely difficult. Blaney testified that when Dr. Stillwell removed plaintiff’s clothing and examined the leg, that he (witness) heard a grating noise when the doctor moved the leg; that somebody, standing by spoke of it. He was then asked what did they say about it. This was objected to as hearsay and excluded. This evidence should have been admitted. It was important to ascertain whether there was heard at the time such distinct crepitus as would justify Dr. Stillwell in treating it as a case of fracture and not dislocation. "While those present on their attention having been called to it, may have remembered or imagined that they heard such a noise, no such uncertainty could exist at the time, when the noise was so distinctly heard as to be the subject of comment or remark by those present. The remarks made on such an occasion are not statements of a past transaction, but of one actually taking place at the time they are being made. Such remarks are likely to call the attention of others present to the sounds heard, and to correctly determine the nature and character of them, and how they are caused or from whence they proceed, and cause a deeper and better impression to be made upon the minds of those present as to what was actually heard. Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich., 107. The testimony of the witness Mason should not have been admitted.' This whole matter was collateral to the question at issue, and if counsel thought proper to examine Dr. Hitchcock in reference thereto, his answers were conclusive, and they were bound by them. Besides the evidence of Mason did not fairly tend to show that Dr. Hitchcock had not in fact received the information he claimed to have, but rather that if he had, it was untrue. This could not affect the doctor, who did not claim that the information he received was true, but that he had been so informed. Dr. Webber, a physician and surgeon, was examined as a witness on the part of the plaintiff and testified to having made an examination of the plaintiff in the fall of 1873 at St. Luke’s hospital in the city of Detroit, and as to the condition in which he then found him. He ■was then asked: “Assuming that the leg was in good condition prior to the accident, what should you say to be the cause of the difficulty, as you found the patient last?” The objection made to this was that the witness could not answer the question without assuming certain facts, and such facts it would be necessary to know in order to understand the value of the opinion. This objection was well taken. The witness was asked to give an opinion as to the cause of the particular difficulty under which the plaintiff was laboring at the time the witness made the examination in the fall of 1873. And it appeared also that the manner in which the plaintiff originally received the injury was known to the witness. Even in cases where experts are called upon to give an opinion based upon their own personal observation or examination, the facts upon which the opinion is founded must all be stated; otherwise the witness might be giving an opinion which would have great weight with the jury upon, a state of facts very different from those found by them in the case on trial. The value of the opinion, in other words, must depend very largely upon the facts on which it is based. And there is or may be, I suppose, such a thing as a difference of opinion amongst experts, arising upon the same state of facts. The facts therefore should always be stated, so that others may not only be able to determine the correctness of the opinion given, but that the jury may ultimately determine the truth or falsity of the facts stated, and thereby be enabled to give to the opinion the importance it is justly entitled to. Beaubien v. Cicotte, 12 Mich., 501; Kempsey v. McGinniss, 21 Mich., 138. The question asked in this case was not so framed as to coniine the witness in giving an opinion, to the facts he had previously testified to, and to exclude all other influences, or knowledge that he might have possessed. Underwood v. Waldron, 33 Mich., 235. The mere fact that the answer did not go to the whole case, but only a portion of it, could not, as claimed, make any difference. The portion to which this did go was material, and if such a distinction could be drawn, but little protection could be afforded from an enforcement of the rule. We now come to some of the more important and indeed the principal questions in the case, and a question is presented at the outset, whether there was any evidence in the case under which Dr. Hitchcock could be held or found liable. On the part of the plaintiffs in error it is claimed that the entire evidence bearing upon this part of the case is incorporated in the bill of exceptions, while on the part of the defendant this is denied. The bill of exceptions is made up by taking each witness, apparently in the order in which they were examined, stating by whom called, followed by the name of the witness, “who being duly sworn, testified in substance.” — and then giving the substance of the testimony of the witness. After setting forth in this manner the testimony of each witness substantially, then follows the statement “and the testimony being here closed,” etc. We must therefore within the previous decisions of this court assume that all the evidence bearing upon this question is sufficiently set forth in the bill of exceptions. Atlas Mining Co. v. Johnston, 23 Mich., 46; Hewitt v. Begole, 22 Mich., 34; Carter v. Snyder, 27 Mich., 486; and Shaw v. Hoffman, 25 Mich., 170. The evidence bearing upon this branch of the case was as follows: “ Counsel for plaintiff, to further maintain said issue, called as a witness, George- E. Curtis, who testified that in 1873 he was superintendent of the South Haven branch of the Michigan Central railroad; that Dr. Hitchcock was surgeon of the road; that when Búrgett was hurt, Hitchcock was out of- town; that previous to his going he had stated to witness that if anything happened, Stillwell would look after it for him; that witness accordingly sent for Stillwell; don’t know as Dr. Stillwell said anything about taking Hitchcock’s place.” I can find no evidence tending to show that Dr. Hitchcock had, previous to the time plaintiff was injured, requested Dr. Stillwell to attend to any such cases, or that Dr. Stillwell had agreed so to do. Nor as the case stands should I consider such a request very material. It also appeared that on the third or fourth day after the injury Dr. Hitchcock returned, and being surgeon of the railroad took charge of the case; that Dr. Stillwell objected to leaving the case, and the plaintiff was also averse to his leaving, but Stillwell turned the case over to Dr. Hitchcock “upon an arrangement being made that they should remove the temporary dressings, and make a careful examination of the case, as soon as the swelling had abated so it could be done.”’ This was fixed for the ninth day, which was the time that the patient was removed to Detroit. Counsel for defendants requested the court to charge the jury: “If the jury find that one of the defendants was guilty of negligence, that is, did not use ordinary skill and diligence in the treatment of plaintiff, and that the other defendant was not guilty of such negligence, then the jury should acquit the defendant whom they find not guilty.” This was refused, but the court submitted the case to the jury upon the theory that if they found Hitchcock was surgeon of the road, in whose employ plaintiff' was at the time of the injury, and that as such surgeon it was his duty to attend upon the employees of the road when injured; that in his absence he had requested Dr. Stillwell to attend any cases on the road for him, and for that reason Stillwell was called, and the plaintiff suffered from the negligence or unskillful management of Stillwell, defendants would be jointly liable for the damages resulting from such negligence or want ■ of skill; that with the exception of the employment of Stillwell by Hitchcock in the manner suggested by the court, each would only be liable for his own acts. This refusal to charge, and the charge as given, cannot under the evidence in this case be sustained. We are of opinion that the bill of exceptions fails to sot forth any evidence fairly tending to show an employment of Dr. Stillwell by Dr. Hitchcock, or any such relationship existing between them, growing out of either Dr. Hitchcock’s position as surgeon of the road and what he had said to the superintendent, or otherwise, under which he could properly be held liable for the négligence or unskilfullness of Dr. Stillwell. Taken at the best, the statement made by Dr. Hitchcock to the superintendent of the road, was but a mere recommendation, in no way binding the company to call Dr. Stillwell, or the latter to respond if called upon. Dr. Stillwell in treating the plaintiff fewas not acting for Dr. Hitchcock but for the railroad company, and was afterwards paid for his services by the company. It was right and proper that the physician of the company when about to be absent for a few days should inform the company of his pro posed absence and recommend some other person to take his place, should occasion require, until his return. This would be equally true of a family physician about to go away for a short time. There would be nothing more natural or proper than for him, before going away, to give notice of the fact and recommend some suitable person to be called during his absence. Yet no one would think of considering the person so recommended, if called, as acting under the employment of the physician who recommended him. It is not claimed that there was any express agreement between Stillwell and Hitchcock under which the latter agreed to pay the former for any such services as he might be called upon to perform. And certainly the facts as appearing upon this record would not raise an implied promise. If Dr. Stillwell was not, in his treatment of the plaintiff, acting under such relations with Dr. Hitchcock as 'would render the latter responsible for his negligence and want of skill, if there were any such, then we can see no evidence under which Dr. Hitchcock could be held responsible at all. There is no evidence of any negligence or want of skill or care on the part of Dr. Hitchcock after his return and before the arrival of Dr. Walker from Detroit, If at the time of Dr.. Walker’s arrival the dislocation, if such it was, had not been properly reduced, that must have been the fault of Dr. Stillwell and not that of Dr. Hitchcock. If Dr. Hitchcock was guilty of negligence in not making a more thorough examination of the patient on his return, how much stronger may such an argument be used against the Detroit physicians, who made no thorough examination for some four weeks after the patient had been under their care, and not until he had called their attention to the discovery he had made. The fact is, as the case is presented upon this record, the Detroit physicians and Dr. Hitchcock, acting from all the information they had received from Dr. Stillwell and from the examinations which they made and considered sufficient, were justified in concluding that the treatment of Dr. Stillwell had been correct. The removal of the patient to Detroit, his freedom from severe pain during the journey and afterwards, all tend to the same conclusion, and to show that some important facts must have existed in the case which were not brought out on the trial. Other errors appear in the record, notably so that portion of the charge that the reasonable skill required to be exercised by a physician or surgeon is such as educated physicians or surgeons ordinarily exercise, taking into account the advanced state of the profession. That the advanced state of the profession should be considered was correct, but that the reasonable sidll required is such as educated physicians ordinarily exercise, was requiring and laying down too. high a test. This was singling out a particular branch, even after taking into account the advanced state of the profession as a whole, and requiring the defendant’s skill and diligence to be measured by that as a standard. What the standard or educated physicians was — the necessary qualifications of an educated physician — the court did not attempt to point out or define, and what standard the jury may have fixed upon, under such instructions, we have no means of knowing. Besides there was no evidence tending to show that the treatment by defendants was not' even according to the standard of educated physicians. In the present aspect of the case, however, it would seem unnecessary to discuss at length this or any of the other questions arising in the case. The judgment must be reversed with costs and a new trial ordered. The other Justices concurred. Dr. Hitchcock had given the following testimony on cross-examination : “It was brought to my knowledge at one time that Mr. Germaine Mason had charge of this ease as attorney for Burgett; I did not object to his bringing this action, — I think I made an objection, not particularly to the officers of the railroad company, but I hoped it would reach them, because I had ground of objection; I did not tell the officers of the company and protest against his bringing this action against me. I talked with Mr. Mason on the subject of the suit; Mason was acting as one of the attorneys for the Michigan Central Railroad, and I was then surgeon of the road.” On re-direct examination he testified; “I wrote the individual referred to that I was prepared to show by two individuals that Mr. Mason, acting as attorney for the Michigan Central Railroad Company had also acted as the attorney of the individual who claimed to have an action against the Michigan Central Railroad Company, and had settled with them for $2600 upon the basis that he should receive 33J per cent of it all.” On re-cross-examination he testified : “ The person I made the communication to was Dr. Jenks of Detroit, one of the officers of the road; he was not then surgeon-in-chief. ” On farther cross-examination he testified that he had a talk with Mr. Mason about the time this suit was commenced; that Mr. Mason sent for him to come to his office. “Did you not at that time say to him, you being in the employ of the Michigan Central Railroad Company, and he also, that there would be troublo if he went on with the case?" “I did not.” Mr. Mason was called as a witness by plaintiff’s counsel, Mr. Brown, who said: “ If you have any statement in regard to your connection with the case of Burgett against the doctors and against the Michigan Central railway company, you make it, confining yourself to the matter which Dr. Hitchcock testified about. The Court. “ You mean the matter of the conversation between them detailed by him with Mr. Mason.” Mr. Brown. “Not only that, your Honor, but with regard to the matter which Dr. Hitchcock stated in his letter to Dr. Jenks.” Mr. Severens (of defendant’s counsel). “As I understand it, it is about Mr. Mason’s share or participation in the settlement between the Michigan Central railway company and Burgett,” The Court. “I don’t see how that would be material here." Mr. Brown. “I will coniine it to a question or two, your Honor. ” “Did you ever share in any manner in anything that Mr. Burgett may have received from the Michigan Central railway company?” Mr. Turnor (of defendant’s counsel). “We object to it as immaterial.” Mr. Brown. “Dr. Hitchcock said that he had, and I propose to show that is not true, and I offer it for that purpose and with this view, your Honor; the testimony was enquired of Dr. Hitchcock for the purpose of showing the improper means he had taken to defend himself in this case ; we sought to show on the cross-examination of that gentleman that he had made charges against a man for threatening to bring this action, for being employed by Mr. Burgett against him ; charges which I now propose to show wero false when he made them.” Mr. • Turner. “ If your Honor please, Dr. Hitchcock did not state in his testimony that Mr. Mason had made such settlement, or had received such share, but that he had written to an officer of the company that he had been informed that Mr. Mason had acted for Burgett in the settlement and received a share of the money received from the company, and in any event the matter is irrelevant and immaterial and was drawn out on cross-examination against our objection.” The objection was overruled, and counsel for defendants excepted. “Did you receive anything from Mr. Burgett as payment for your services or advice or assistance in any manner against tho Michigan Central railway company?” Mr. Mason. “Never, sir; nor never was any allusion made to anything of the kind; I never heard of it until I heard it rumored by the statement of Dr. Hitchcock; it is a most unjust, false and cruel statement towards me; I had a conversation at one time with Dr. Hitchcock with regard to my being employed in the case; it was at my office; Dr. Stillwell was present; Hitchcock raised the question of my acting as the attorney against him while he was surgeon of the road.”

Campbell, C. J. The bill in this cause was filed by Hall as owner of a water right, against the defendants to restrain them from diverting the water, which they were preparing to do for the purpose of a corporation supply for such uses as cities generally have occasion for. The little stream out of which the controversy arises, has its source in a small springy tract in the southeast corner of section 18 and northeast corner of section 19, in township 7 north, of range 6 west; and, running down a short distance southwardly, was then turned westward by a dam and elbow, so as to conduct it across section 19 to another similar stream still smaller, whose combined waters were formerly used to run a mill, and after passing that flowed by a short passage into Grand Eiver. The stream in controversy, called East Creek, is a very small but rapid run about a yard wide, and deep enough to make in some places a cross section of about 96 inches. The testimony shows it would not usually quite fill a ten-inch pipe. Its capacity for driving machinery made it equivalent for driving the wheel actually used, to about eight horse power. Its money value is shown to be from $3,000 to $5,000. Section 19 was purchased of the United States in 1833 by Samuel Dexter. On February 3, 1836, Samuel Dexter and wife conveyed to their son Lorenzo Dexter a parcel from the northeast part of the section containing sixty-eight 30-100 acres, through which the water flowed. The deed was made with the following qualification: “The parties of the first part reserve the right of turning the waters from the land in the stream running near the west line of said land forever; also the right of making repairs on the works for turning said stream wherever it may be necessary.” On the 9th of February, 1837, Samuel Dexter and wife conveyed to their daughter Mary A. Tibbits twenty acres adjoining Lorenzo Dexter’s land, through which the stream in its natural channel flowed to Grand Eiver; and that deed contained the following clause: “Always reserving to the parties of the first part the right of constructing a canal across the same land whenever and wherever they choose. And also always reserving to the said parties of the first part the right of diverting the waters of the East Creek so-called, which now runs through said land, from its natural channel to the grist mill of the said Samuel Dexter, through the medium of a canal, with the appurtenances, and all the estate, right, title and interest therein-of the parties of the first part.” Samuel Dexter commenced a ditch from a turn out elbow and dam and ran it across westward till it was joined as before mentioned with the water from West Creek and thence to his mill, in 1837 and 1838. On the 17th of April, 1837, Robert S. Parks and Lawson S. Warner, who had purchased from Lorenzo Dexter, and who desired to use the water for their business, took from Samuel Dexter a grant of his right “of, in and to all the water of the East Creek so called, running through section nineteen, town seven north and range six west, with all and singular the hereditaments and appurtenances thereunto belonging, excepting at a point below the shop built and now occupied by S. B. Worden, a distance from said shop 2 chains and 3 links according to the meanderings of said creek, and 1 chain and 86 links' in a straight line, where I have now commenced the digging of my race, and where. I do forever hold the right of turning the waters of said creek at said point.” Parks testifies that according to their understanding in getting this grant, and their action under it, the water was to be returned by them into the stream so as all to pass through the canal or ditch referred to. They built a woolen factory, and they and subsequent grantees from time to time built and renewed their dams and used the water as they needed it, not diverting it from its natural way to reach the ditch. The property above the ditch has now passed into the hands of the city of Ionia, who purchased July 26, 1875, of one Clark, and who when this bill was filed about two months there after were making arrangements whereby all or substantially all the water would be drawn off by pipes from their premises where they were preparing to keep it stored, so as to cut off the further course of the stream below them. On the 19th of April, 1847, Samuel Dexter and wife conveyed all their interest in section nineteen to John O. Dexter. He had previously in 1837 built a mill and used the water power to run it. This use was continued by John C. Dexter with his father until 1852 and thereafter until 1861, when he substituted steam. About 1866 John C. Dexter entered into a contract with the village of Ionia, whereby they were to be at liberty to take water from the ditch for five years to use for cisterns and fire purposes, and in return were to put in a new conductor or flume in the ditch and keep it covered and maintain it during that period, — after which it was to belong to John C. Dexter, or his assigns. The village went on and acted under this contract. October 15, 1868, John C. Dexter and wife made a conveyance to complainant, in consideration of the price of $3,000, which he paid therefoi’, of all the water rights in East and West creeks and the ditch and appurtenant rights as follows: “ All the right, title, interest and privileges which the parties of the first part have in and to the waters of the East and West creeks, , so called, on section nineteen, in town seven north, of range six west, in Ionia county, Michigan, being the creeks formerly used by the said Dexter in propelling his grist mill in the village of Ionia, together with the right of conveying the said waters in races or ditches from said creeks in the races or ditches which have been heretofore used by the said Dexter, also the right to maintain and keep in repair said races or ditches, and to enter upon the land adjoining said ditches for repairing said races or ditches; it being the intention of the party of the first part to convey all the rights which the party of the first part has in the waters of said streams, and the right to carry said waters in the ditch or race heretofore used by said Dexter, always excepting and reserving from this conveyance a right granted to Abel Avery, and his grantees to convey water from said race to the lots on which the Eagle hotel in Ionia stands; also excepting and reserving the rights which the village of Ionia has in the use of the water from said race for the use of the fire department in said village, which right will expire in the spring of the year 1871. But it is understood that the rights now belonging to said village of Ionia, when the same shall expire shall belong to the said party of the second part.” The corporation was allowed to use the water by Mr. Hall for some time after the first grant expired in 1871/ Thereafter various negotiations were had for the purchase' of the waters of East and West creeks, but there was some difference of opinion among the city authorities, and a proposition from them to complainant to accept the liability of a railroad company to which they proposed to furnish water for $500 a year was not deemed satisfactory and not accepted. The price demanded for East creek was $3,000, and for both creeks $5,000, with a quit-claim deed, or a larger sum with warranty. The principal difficulty seems to have been about the form of the deed and the terms of payment. The city had made partial arrangements to. sell water to two railroads, — the Detroit, Lansing & Lake Michigan road for $500 a year, and the Detroit and Milwaukee for $100, which would have given the city water for its own purposes at a very small cost, if not free. The committee appointed to deal with complainant and his associate, Mr. Townsend, who was interested in West creek, seem to have taken a sudden idea of purchasing the woolen factory property before mentioned above the ditch, and appropriating the water by means of a dam and - reservoir there, • and preventing the stream from flowing farther, — and so avoiding making any payment for Hall’s rights; and instead of reporting on the Hall and Townsend proposition referred to them, they recommended the purchase of the woolen mill, which was done. They now defend this suit on the ground that their riparian rights in the woolen factory property give them power to monopolize the stream. They further ' claim that Hall took no rights which he can enforce to any of the water of East creek. Some minor questions were also raised, which, so far as material, may be noticed in their place. Upon a careful inspection of the record, we think there is very little room for controversy. It is manifest from the .conveyances of Samuel Dexter, that if it is legally possible for him to secure and retain for himself the right to the water and the right to divert it into an artificial channel, he has done so. It is not at all important to find any technical name for his method, or to spend time in the legal etymology of exceptions and reservations, which terms have been used with some carelessness and confusion. The general and as we think the correct method of construing such provisions as those in question, is to give them the force which the deeds evidently intended they should have; and we can have no doubt what intention is manifested by the terms of these instruments'. There is no foundation for the claim that a right to the perpetual use of water must be dependent on a particular estate with which it is connected. Some confusion has perhaps been caused by an attempt among writers to create symmetry in the law by putting all rights connected with lands or springing from them into classes; and by speaking of these particular rights as easements, which very commonly require both a dominant and a servient estate. But every right of property must usually have some peculiar qualities of its own, which must not be destroyed by inappropriate attempts to classify it with different kinds. The old maxim Omnis definitio periculosa is especially true when things of essentially different qualities are placed together under one head. The value of water as a distinct inheritance, either for creating power or for other purposes of use or con sumption, has been recognized in all periods, and its ownership is well established as not dependent on lands to which it may be appurtenant, but as having a separate and intrinsic importance. There may be an occasional dictum, and possibly some decisions to the contrary; but most cases where any doubt seems raised on this question will be found to rest on peculiar facts which in no way involved the general doctrine. The facts are often such as to confine the use of water not only, to special places, but also to specified purposes. But this limited use is the exception and not the rule. Hathaway v. Mitchell, 34 Mich., 164. And for the general doctrine see, among many cases, Hurd v. Curtis, 7 Metc., 94; Pettee v. Hawes, 13 Pick., 323; Cary v. Daniels, 5 Metc., 236; Borst v. Empie, 1 Seld., 33; Goodrich v. Burbank, 12 Allen, 459; Owen v. Field, 102 Mass., 90; Emerson v. Mooney, 50 N. H., 315. Experience has shown that in many instances the right to use and dispose of water may not only be more valuable than any land which is occupied for its gathering and disposal, but it is also of special value to be taken to a distance and parceled out among several users or occupants. Water-works are only made available by the sale of water to consumers, and valuable water power is frequently distributed among several milla in large and small quantities, and may not be used by the owner at all. The ownership of it cannot be confined to a right in the nature of a. license, and is as well recognized a title or interest of a real nature as land itself, without some use of which it could not be made available. The title of Mr. Hall, is fully made out to the water in question, except so far as appurtenant to the upper owners now represented by the city. The city of Ionia has succeeded to the interests of Parks and Warner. These were confined to such uses as were made in connection with their riparian property above the place of diversion. They had no right to collect the water for any other purpose. Swindon Water Works Co. v. Wilts & Berks Canal Navigation Co., L. R., 7 H. L., 697; Dumont v. Kellogg, 29 Mich., 420. It is claimed that some of the water has been taken into the stream since the reservation, and formed no part of it. If defendants had gathered this additional water themselves for the purpose of supplying their water pipes from sources which would not have sent water into the stream, a very different question would arise from what is now presented. It appears plainly that this additional supply is not only trifling in amount, but was not turned into the stream for any purpose of enlarging it. It is simply the improvement of the natural drainage made to accommodate neighboring lands, and quite independent of the purposes of either of -these parties. It cannot, therefore, be considered. It is much to be regretted that the city authorities did not find it convenient to complete their arrangements in some way to secure a permanent title to the water which they had before recognized as belonging to complainant, and enjoyed by his permission. They have been mistaken in supposing that as upper riparian owners they could absorb the stream for city purposes. We think the complainant has a right to an injunction against the threatened proceedings of defendants to collect and divert the water 'to purposes foreign to their use and enjoyment of the woolen factory premises, and that the prayer of the bill to that effect should have been granted. The decree must be reversed with costs of both courts and a new decree entered accordingly. The other Justices concurred.

Graves, J. The defendants claiming to hold the franchise of being a corporation under the name of “The Detroit Light Guard,” the Attorney General filed this information requiring them to show by what warrant they make such claim. They pleaded that they, with one other, making eleven in all, and being members of Military Company A of the Third Regiment, and part of the military or militia organized under the laws of this State, made and executed June 19, 1877 under their hands and seals, and duly acknowledged articles of incorporation under the act entitled “An act to provide for or facilitate the incorporation of military or light guard companies for certain purposes,” approved March 30, 1877, and ordered to take immediate effect, and that such articles were filed in the office of the Clerk of Wayne county, and in the office of the Secretary of State, and that they thereby became a body corporate. The Attorney General replied that at the time the articles were made and filed the military company mentioned included defendants and more than sixty other members, and that no authority was given by the entire company, or by a majority of the members, to prepare or file the articles of incorporation, and that they were made and filed without the procurement, vote, authority or assent of the company and were meant to establish a corporation apart from "it. To this reply there was a demurrer and joinder, and the question is upon the right of any ten or more who happen to belong to a light guard or military company of the organized military or militia of the State to organize a corporation under the act of 1877 on the sole basis of company membership, and independent of .all other conditions, and irrespective of the assent or dissent of the company or of- the -majority of the members. If the act of 1877, in tendering the right to incorporate, prescribes nothing more as pre-requisite than that there must be ten members of a company who at the time agree in taking the organizing measures specified, the demurrer must be sustained; otherwise not. The plea imports no other qualifying circumstance, and if the replication should be considered irregular, the demurrer would expose demurrable faults in the earlier pleading. JBy this it is not intended to say that the replication is bad. It is a matter.of no importance. At the passage of the act of 1877 the Legislature had enacted a scheme for the creation of an active military force from, the body of the militia, and a leading feature of it was of course the. contrivance and adoption of regulations for the formation and interior management and police of the primary bodies to compose the general array. It was hence ordained that whenever forty?eight or more men within the same regimental district should associate together to form, a company, the Gommandér-in-Chief, on application through the Adjutant General, .might organize them into a company (Comp. L., §§ 865, 866, as amended, 1 Sess. L. 1873, p. 156), and it was also provided that the company must be kept up to thirty-two privates, or be disbanded (Comp. L., § 891, as amended, 1 Sess. L. 1873, p. 157). The amending act of 1873 is in one particular ambiguous. The Legislature intended by it to repeal section 867 or section 877 of the Compilation, and whether either was repealed, and if so.which, is ambiguous. The act is entitled to repeal section 50 of the original act, and section 877 of the Compilation, whereas the repealing clause in the body of the-act expresses section 50 of the original act, but section 867 of the Compilation. Nosy section SO of the original act is identical with section 877 of the Compilation, whilst section 867 of the Compilation is equivalent to section 40 of the original act, and this section is one of importance in regard to the power of self-government possessed by companies. It provides expressly that the company, by a majority of its members, may adopt a constitution and by-laws for its government and discipline. Section SO of the original act applies to a different subject altogether. It requires the officers and men to provide themselves with such uniforms complete, as the State Military Board shall prescribe, with certain qualifications. In view of the present purpose it is not very material whether section 40 of the original act is or is not repealed; because apart from it the law allows the company to make by-laws and to declare itself by majority vote in regard to many things. It is meant to be a body organized and cemented by law with some of the characteristics of corporate existence. It is designed to be capable of self-management and self-control within particular limits, and to be able to express itself concerning some matters as a distinct entity; and as a means, the usual way of collecting the sense of constituents, namely by vote, is recognized. The Legislature of 1877, contemplating the composition and status of these companies, and deeming it expedient to enable them to construct distinct civil and more permanent associations on the basis of their military organization, passed the act entitled “An act to provide for or facilitate the incorporation of military or light guard companies for certain purposes.” Public Acts of 1877, p. 28. And the first section, adhering strictly to the object as expressed in the title, defined those who might become incorporated as “ any light guard or military company in this State being a part of the military or militia organized under the laws of the State,” and then described the object of every corporation contemplated by the act as the “purchasing or erecting and constructing an armory and other edifice or hall, to be used by them and let to others for literary entertainments, public meetings, exhibitions or any other legitimate purpose.” Having thus specified in this first section who might become incorporated and the purpose of incorporation, the act in no subsequent part distinctly assumes to enlarge the number capable of being formed into corporations, or to introduce any new basis, and the simplicity of the apparent design would seem to have forbidden the accumulation of distinct fundamental provisions. Moreover, any such addition could not be reconciled with the title, and there is no rule for construing these acts for the voluntary organization of private corporations so liberally as to include among the parties allowed to become incorporated any who are not plainly made competent. Now the second section, which is relied upon as enabling a group of ten or more of the members of a company to constitute a corporation, and apart entirely from the company as a body and from the other members of it, does not undertake, as the Court thinks, to declare who may become incorporated, but simply to order how those just designated as competent may be brought under corporate, organization. The members of this section, it is true, are not well arranged and the design is not properly furnished with regulations; but after all it seems reasonably clear that it was not the purpose of the Legislature to enlarge the scope of the act as marked out in the first section, as to who might become incorporated. The opposite theory involves the objectionable assumption that the Legislature by the second section rendered needless the provision in the first on this subject; because .if the second section allows any ten or more to become incorporated, it certainly allows all in the company to do so, and the provision in the first section is worthless. Looking at the general scheme and also at the terms, we think the second section has for its sole object the marking out a mode of proceeding to effect corporate organization on the basis stated in the title and the first section, and that basis is that the company, and not a knot or minority of its members, shall make up the corporation. The last section but one strongly confirms this view. It declares that dissolution of the company as a military organization shall not terminate the corporation. And this implies a closer relationship between the two organizations than could exist if the military body as a unit was not in the first instance to be comprehended. The author of this act observing the organization and mode of action of the military companies under the statutes enacted for their formation and government, and conceiving it practicable for them td become incorporated, seems to have proceeded on the theory that a company under its existing association might express by vote the desire to become incorporated and invest a group of members with authority to frame, or at least adopt, sub; scribe and file the proper articles in its behalf and thereby convert the whole membership into corporators. But it is needless to speculate on the subject. It is sufficient that whatever may have been the theory, the court is satisfied that the law does not authorize the launching of a corporation having as corporators only a minority of a military company, and is also inclined to think there are serious defects concerning the proceedings necessary to effect incorporation and upon other points. The demurrer must be overruled with costs. The other Justices concurred.

Cooley, J. This is a case of certiorari to a justice’s court. The proceedings in that court were by attachment, and the plaintiffs in error, who were defendants below, were not personally served and did not appear. The plaintiff declared upon a justice’s judgment rendered in an attachment suit, and gave no evidence but the judgment itself. The judgment was void on its face-because it did not show a service of the writ as required by the statute. (See the preceding case.) The justice therefore erred in entering another judgment upon it. In this case, however, as in the last, no reason appears for removing the proceedings to this court, instead of seeking the appropriate remedy in the justice’s court or in the circuit court. Costs are therefore denied. The other Justices concurred.

Cooley, J. Rice sued the plaintiffs in error in trespass, and declared “for that whereas on &c., at &c., the said defendants did negligently permit fire to pass from the premises of the said James Boyd, being fire which the said defendant William Boyd had there started, which fire the said defendants did negligently permit to pass from the grounds of the said James Boyd, to wit, &c., to the land of one Ann Baber, and from thence to the land of one Orlando Bice, to wit, &c., which said fire so allowed to escape by the said defendants did .then and there upon the land last described burn up and destroy thirty-one and one-half cords of wood of great value, to wit, the value of forty dollars of the property of said plaintiff. And said plaintiff avers that said fire was so negligently allowed to pass from the grounds of said James Boyd by the said defendants in violation of the provisions of section one of chapter 255 of the Compiled Laws of 1871, whereby said defendants became and are liable to said plaintiff in double damages sustained by him, to wit,” &c. • The facts in proof were that defendant William Boyd was the hired servant of James Boyd, employed upon his farm, and that while so employed, without directions so to do, and while his employer was absent from the State, he set fire to a stubble, and this spread to the adjoining lands, and at length reached and burned up the plaintiff’s wood. No personal fault is attributed to James Boyd, but his liability is grounded on the doctrine respondeat superior. The statute under which the action was brought is as follows: “ Every person who shall willfully or negligently set fire to any woods, prairies, or grounds not his own property, or shall willfully or negligently permit any fire to pass from his own woods, prairies or grounds, to the injury or destruction of the property of any other person, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding one year, or both, in the discretion of the court; and shall also be liable to the party injured, in double the amount of damages sustained.” Comp. L., § 7790. It is not pretended that there is any liability in this case except for negligently permitting the fire to pass from the premises of James Boyd to the premises of Orlando Bice where the wood was burned. But while the defendant William Bice might be subject to an action at the common law for his. negligence, it seems plain that he cannot be liable under this statute. It was not from his premises that the fire was negligently permitted to spread, and this statute carefully restricts its penalties to him who willfully or negligently permits the fire to pass from “his own woods, prairies or grounds” to the injury of another.. William Boyd was not within its provisions. But it is quite as plain that James Boyd was not liable for the act of William Boyd, of which-he had no knowledge, and for which it is not pretended he was in fault. The private action for the recovery of double damages is only given where the misdemeanor has been committed, and there is no misdemeanor where the owner . of the land has' had no knowledge of the fire, and cannot be charged in respect to it with either willfulness or negligence. He also may have been responsible at the common law for the fault of his servant, but the penal consequences are only imposed by this statute where there has been personal fault. To preclude all misapprehension it is proper to say that no negligence is attributed to James Boyd in the employment of an unsuitable person as servant, or in trusting the care of his farm with such a person. The judgment must be reversed with costs, and a new trial ordered. The other Justices concurred.

Marston, J. Plaintiff in error was convicted of the crime of murder in the first degree. The only errors necessary to notice are two: First. On the trial of the cause counsel for respondent objected to counsel who had been employed by the prosecuting witness, and other private individuals to assist in the prosecution of said cause, so appearing, and offered to show that he was thus employed. Thereupon the prosecuting attorney stated to the court that the counsel referred to was acting in the cause at his request. The court refused to hear the evidence and permitted the counsel so employed to assist in the prosecution of the case. That the prosecuting attorney has a right to employ counsel with the leave of the court, to assist in the prosecution of a cause, and that the services so rendered would constitute a proper charge against the county, we have no doubt. Counsel so employed are acting for and on behalf of the public, — as much so, and with as much impartiality as the prosecuting attorney, and many cases may arise where it is highly proper that counsel should be so employed in the interests of justice. It is quite different, however, where such counsel are employed by the complaining witness or the party injured or by private individuals. Counsel so employed can in no fail-sense be said to be employed by or on behalf of the people, even although the prosecuting attorney may consent to or even request that counsel be so employed. This case comes clearly within the case of Meister v. The People, 31 Mich., 99. Second. That the charge contained and set forth in the warrant and information does not amount to a charge of murder in the first degree. Our statute (2 Comp. L., § 7916) provides that in all indictments for murder and manslaughter, it shall not be necessary to set forth the manner in which or the means by •which the death of the deceased was caused; but it shall be sufficient in any indictment for murder, to charge that the defendant did willfully, and of his malice aforethought, kill and murder the deceased. The charge as contained in the warrant and information fully complied with this statute and was, we think, sufficient. It is not open to the objection, as urged, that it does not sufficiently apprise the accused of the nature of the offense for which he is to be tried. No one we think could misunderstand the nature or effect of such a charge or be misled by it. The practice in this State since the passage of this statute, has been quite uniform in adopting the form here given, and no question has heretofore been raised as to the sufficiency of the same, or as to the want of power in the Legislature to pass such a statute. There may be cases where an information in the language of the statute, as in People v. Olmstead, 30 Mich., 439, would not be sufficient, but this is not one of that class. Here the evidence on the part of the prosecution tended to show that respondent went with a loaded gun into a piece of woods on or near the road where deceased was about to pass, and there waited until he came along and shot and killed him. The distinction between the ordinary common-law offenses, where the indictment contained no moré definite information than was set forth in this case, and those offenses which originated in the statute defining them, where allegations conforming to the statute must be set forth, was pointed out in the case last referred to. See also Meister v. People, 31 Mich., 99. In this ease it was claimed that the information should be more full and explicit in its allegations than a common-law indictment, and that such was necessary to inform the accused fully of the nature of the accusation. Under our system an information cannot be filed against the accused and he compelled to go to trial thereon until after he has had an examination or waived the same. This gives him full opportunity, if he desires to avail himself of it, to ascertain fully the facts to be brought forth against him, and that in a much clearer and better manner than he could have ascertained them under the grand jury system. We are of opinion that the charge as contained in the warrant and information was sufficient; but for the error already pointed out the judgment must be reversed and a new trial ordered. The other Justices concurred. Warrant. — State of Michigan, county of Yan Burén, ss. To the sheriff, or any constable of said county, greeting: Whereas, Benj. P. Heckert, prosecuting attorney of said county, hath this day made complaint in writing, or on oath, to me, Kirke W. Noyes, a justice of the peace of the township of Paw Paw, in said county, that heretofore, to-wit, on the 13th day of June, A. D. 1876, at the township of Porter, in the county aforesaid, William Sneed, late of the township of Antwerp, in said county of Yan Burén, feloniously, willfully and of his malice aforethought, did kill and murder one Lafayette Love, contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the people of the State of Michigan: and whereas, on examination on oath of the said Benj. S’. Heckert by me, the said justice of the peace, it appears to me the said justice of the peace, that said offense has been committed, and there is just cause to suspect the said William Sneed to have been guilty thereof: therefore, in the name of the people of the State of Michigan, you and each of you are hereby commanded forthwith to arrest the said William Sneed, and bring him before me the said justice of the peace, to be dealt with according to law. Given under my hand and seal, at Paw Paw, in said county, on the 27th day of August, A. D. 1877. Kirk W. Noyes, justice of the peace, fn. s.] Information. — State of Michigan, county of Van Buren, ss. The circuit court for the county of Van Buren. Benj. P. Heckert, prosecuting attorney for the county of Van Burén aforesaid, for and in behalf of the State of Michigan, comes into court in the August term thereof, A. D. 1877, and gives it here to understand and be informed, that William Sneed, late of the town of Antwerp in the county of Van Burén and State of Michigan, heretofore, to-wit: on the 13th day of June in the year one thousand eight hundred and seventy-six, at the township of Porter in said Van Burén county, feloniously, willfully and of his malice aforethought, did kill and murder one Lafayette Love, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan. Benj. P. Heckert, prosecuting attorney for the county of Van Burén.

Cooley, J. The plaintiffs replevied from the defendant a paneling machine, and the question in controversy related to the ownership of this machine, at the time the suit was brought. The plaintiff gave evidence of having purchased it of one Bice, through John Warren his agent, and also of having purchased the right to manufacture and use machines of the kind in the counties of Genesee, Saginaw and Bay, under the letters patent which had been issued therefor. A contract between the plaintiff of the first part and John Warren and Lester Cross of the second part was then proved, under which Warren and Cross were constituted agents for the plaintiff in the sale of rights to manufacture and use said machine in the counties aforesaid, and were to have the machine delivered to them for the purposes of the agency, and were to re-deliver the same at Detroit when requested. It was then shown that Warren had possession of the machine at Flint, and that from him it passed into the possession of defendant. The defense was that the machine was the property of Warren, and had been seized by the defendant as sheriff on an attachment issued against Warren in favor of one Roberts. The evidence of Roberts was put in that while Warren was at Flint in possession of the machine, he, Roberts, supposing him to be the owner thereof, trusted him for board to the sum of four hundred dollars and upwards, to recover which the attachment suit was instituted. The defendant then offered, to prove by several witnesses that while Warren thus had the machine in possession he represented himself to be the owner thereof. This evidence was objected to, but received by the court, and the witness Roberts and one Howland testified to such representations. There was also some evidence that Warren once spoke of the machine as “his machine” in the presence of Leavitt, the president of the plaintiff, and of Roberts, but Leavitt denied ever hearing such a remark. When the evidence was in, plaintiff requested the court to submit to the jury the following special questions: 1. Did the plaintiff purchase the machine of Rice? 2. Did the plaintiff ever sell the machine to any one, and if so, to whom? 3. Did Warren have the machine in question at Flint, under and by virtue of the contract of the plaintiff with Warren and Rice? The ■ court declined to submit these questions, and proceeded to instruct the jury among other things that if they should find that Leavitt, the president of the plaintiff, was in Flint and heard Warren say, in the presence of Roberts, that tbe machine was his, and kept silent, and said nothing about it, and Warren continued to give Roberts credit, then the plaintiff would be estopped from claiming title in this case as against the attachment of Roberts. The plaintiff’s'counsel requested the court to limit this instruction to that portion of the 'credit which accrued after the alleged statement was made, but the court declined to do so. The defendant had a verdict upon which judgment was entered. I. In support of the admission of Warren’s declarations that he was owner of the machine, our attention is directed to those cases in which the declarations of one in possession of land when they are made, are permitted to be proved in a suit to which one who subsequently sueGeeds to his right is a party. Such cases were considered at some length in the case of Cook v. Knowles, ante, p. 316, and we shall not review them here. In general such declarations can only be received in disparagement of the party’s title; not in support of it; they may be shown to characterize a possession and thus make out an adverse holding, because for this purpose they would be a part of the res gestee-, but they are never received as evidence of title in favor of the party making them. It is true that the declarations of an agent, when acting within the scope of his agency, and when made in connection with some transaction as such, are receivable, as part of the res gestee, but it would be extremely dangerous to hold that the mere possession of chattels by an agent would empower him to admit away the title of his principal. No authority sanctions such a doctrine, and Turner v. Belden, 9 Mo., 797 and Russell v. Clark, 38 Me., 332, which are cited for the plaintiff are to the contrary. II. If the application by the court of the doctrine of estoppel to the case had been correct, the submission to the jury of the special questions would have been properly refused. We have several times held that where the answers to special questions would be inconclusive, and not necessarily inconsistent with a general verdict either way, it would be proper for the court to decline to submit them. People v. Jones, 24 Mich., 215; Fowler v. Hoffman, 31 Mich., 215; Harbaugh v. Cicotte, 33 Mich., 241. Such would have been the case here under the judge’s view of the estoppel, because, although the jury might have found that the plaintiff bought the machine and had never disposed of it, they must nevertheless have thought the defendant entitled to recover- if they believed the testimony on which the claim of estoppel was based. But we think the view taken by the court of this branch of the ease was clearly erroneous-. The general doctrine of estoppel in pais is familiar. If one maintain silence when in conscience he ought to speak, the equity of the law will debar him from speaking when in conscience he ought to remain silent. In Dann v. Cudney, 13 Mich., 239, the doctrine was applied to a wife who had, without objection, permitted her husband to receive payment for her horse which he had wrongfully disposed of as his own. ' The sale was an assertion of his ownership, and if she proposed to dispute this, good faith required that she should do so before the purchaser had parted with his money provided she had the opportunity. She did have the opportunity in that case, but failed to embrace it, and the purchaser in reliance upon her silence completed the purchase. But there is no analogous state of facts in this case. The case here is that Leavitt, the president of the corporation owning the machine, hears Warren, its agent, speak of the machine as his own, and does not interpose and deny the fact. The evidence does not indicate that the remark of Warren was anything more than a casual remark, such as an agent in possession of property might naturally make without any purpose to assert a title in himself. There is nothing strange or unusual in an agent or clerk, intrusted with property to manage or sell, speaking of it as “mine,” and the owner if pres ent would never think of interposing a correction unless the agent was making or proposing to make some use of the property inconsistent with his duty as agent. He certainly,would not be bound in conscience to do so for the benefit of any mere bystander to whom no sale or other disposition of the property was proposed. In this case Leavitt was not called upon to put Roberts on his guard, because Roberts was not dealing with the property or proposing to do so. The conscience of Leavitt was therefore untouched in the case, and the bad faith of his subsequently asserting title for the corporation is not made out. But neither does it appear that Roberts subsequently acted in reliance upon Warren’s ownership. No one testifies that Warren was trusted on the faith of this undisputed allegation or statement that the property was his, nor do we find any action predicated upon it until the levy of execution. It is not claimed that any estoppel could arise from this lévy: the mere levy can never put' a title in the judgment debtor, by estoppel or otherwise. The case, it is manifest, is not brought within the principles of the law of estoppel as previously laid down in this court. Graydon v. Church, 7 Mich., 36; Vinton v. Peck, 14 Mich., 287; Truesdail v. Ward, 24 Mich., 117. In support of the views we take of the facts of this case we refer to Traun v. Keiffer, 31 Ala., 136; Bragg v. Boston &c. R. R. Co., 9 Allen, 54; Mc Dermott v. Barnum, 16 Mo., 114. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.

Marston, J. Admitting, as claimed by defendant, that machinery put into a building by a tenant would not be subject to or affected by a real estate mortgage previously given by the lessor, yet this case as it now stands would not come within that rule. The mortgage in question describes the real estate, “together with the chair manufacturing establishment and buildings for the purpose to be erected thereon.” At the time this mortgage was given the erection of buildings and putting machinery therein for such manufacturing purposes was contemplated and the loan was made to assist in accomplishing such purpose. The form of the mortgage shows that the parties intended it to cover the buildings after-wards to be erected and the machinery that should be placed therein, as such machinery was necessary and essential to .carry out the primary and leading purpose of a “chair manufacturing establishment.” This, however, could not affect the rights of lessees of the premises, subsequently placing machinery in the buildings to enable them to carry on the chair manufacturing business. Crippen v. Morrison, 13 Mich., 23. In this case the lessees, after putting in the machinery, purchased the reversion subject to the mortgage. They thereby united the title to the realty and fixtures in one and the same person. Upon the happening of this event the fixtures at once became subject to the terms of the mortgage, which by its terms had been made broad enough to cover them. ' As bearing upon this question see Cullwick v. Swindell, 3 L. R. Eq., 249; Frankland et al. v. Moulton, 5 Wis., 1, 6; Preston v. Briggs, 16 Vt., 124. The decree was correct and must be affirmed with costs. The other-Justices concurred.

Campbell, C. J. The defendant in error, Mrs. Clary, brought ejectment against defendants below, claiming title under a conveyance from her mother, Ermina Liver-more, dated April 21, 1875, and acknowledged May 7, 1875, the day suit was begun. Defendants sought to defend (1), by showing a tax title to Michael Jeffers deeded to him in 1873 for taxes of 1866; and (2), by title under mortgage foreclosure under a mortgage given by Mrs. Livermore to William C. Chambers July 9, 1868. The tax title was ruled out on the ground that it showed title in a stranger to the suit. An objection was made that it contained more than one parcel. The deed is not recited, and we do not therefore decide whether or not this objection would have been well taken. It is not important under the other questions to be decided. We do not perceive on what ground this ruling-against showing title in a third party was made. Plaintiff disputed the mortgage foreclosure. If that was not valid then the defendants could not be said to hold possession under their mortgage, for an unforeclosed mortgage gives no possessory right. Newton v. McKay, 30 Mich., 380. There was no more reason why defendants should be debarred from showing divestiture of plaintiff’s title by tax sale than by her own deed to a third person. She could not recover without title, - and any thing showing its absence would defeat her claim. Defendants did not enter as her tenants, and are not estopped from disputing her present rights. Inasmuch, however, as the ease must be retried, it becomes necessary to consider whether defendants have any title of their own. They claim under a mortgage foreclosure and deed to Lee. The sheriffs deed on the foreclosure under the statute was made December 22, 1873, by virtue of a sale made on that day. An advertisement had been published for the proper time, beginning September 25, 1873, in the name of Lee as assignee of the mortgage. The regularity of this is attached, partly on the ground of certain previous advertising, and partly for defects in the form of the notice and in Lee’s own title. It appears that certain proceedings had been commenced by advertisement in August, 1873, and discontinued. Also that proceedings had been taken in 1870, in which the mortgage otherwise correctly described was set forth as made by Emma Livermore, and not Ermina. If this sale of 1870 was 'correct, then it conveyed a perfect title and the later proceedings were of no account. It was held invalid on the objection of the plaintiff below, and we think correctly, as the statute requires the notice of sale to give the name of the mortgagor. Comp. L., § 6915. Before the proceedings to foreclose in 1873, Lee, doubtless supposing this foreclosure regular, had conveyed one of the two parcels of the mortgaged lands to each of his two daughters by warranty deeds. One of these daughters was dead, leaving him her heir. It is now claimed he had ceased to be the sole owner of the mortgage, and therefore could not foreclose in his own name. No doubt his grantees under the deeds could enforce a right in equity to prevent any action on his part to their prejudice, and any title he might obtain by foreclosure would enure by estoppel under his warranty. But as the debt was what the mortgage secured, and as the legal title to this remained in him, he was still the legal holder of the mortgage and entitled to enforce it for the benefit of any one who might be interested. It had not ceased to be held in his name, and no one else could foreclose it at law. It is objected further that his notice of September is void as not showing the fact of the commencement and discontinuance of the previous proceedings. The statute forbids the beginning of a statutory foreclosure' if any ■“suit or proceeding shall have been instituted at law, to recover the debt then remaining secured” unless “the .same has been discontinued, or that an execution upon the judgment rendered therein has been returned unsatisfied in whole or in part.” § 6913. This statute clearly refers to suits on the debt, and not to foreclosure proceedings on the mortgage, and its object is to prevent proceedings, at the same time to prosecute the personal liability of the mortgagor and pursue the land. It is to prevent a simultaneous double vexation, which was allowed in England, but not generally here. 'It may also be suggested that the statute, while it •does not allow a foreclosure to proceed at the same time with proceedings at law, provides expressly for what .shall be contained in the notice and requires in it no reference to this subject. The notice is required to contain four elements: 1, the names of the parties to the mortgage, and assignees; 2, the date and when recorded; •3, the amount claimed to be due; 4, a description of the premises. These all identify the instrument and show the extent •of the claims of the party foreclosing, and indicate to persons interested what rights are set up. This is all that they need to be informed of to protect themselves. The fact of proceeding is an assertion that there is no legal obstacle, and the mortgagor liable for the debt needs no information from the notice to tell him whether or .not he has been sued at law. We cannot add to the requirements of the statute and hold a notice void for not asserting or containing what that does not require. In the absence of any statute the power of sale was enforced upon such terms as the contract itself provided. The statute is now the only measure of power, and although most practitioners very wisely insert provisions meeting all the contingencies likely to arise, the notice need not in legal strictness go beyond the law. There is no reason why a party may not discontinue such proceedings, and as the law does not require any mention of it in the notice, the notice is not defective on this ground. It is also claimed that the notice should-have stated the hour and minute of the day when the mortgage was recorded. This is, we think, going beyond reason. The mortgage is otherwise fully described, and the date of the record is enough when the day alone is given, with the other particulars, to serve every useful purpose. No such practice has ever prevailed as is here insisted on. There is nothing in any statute requiring the proof of sale to be perpetuated in the records. This is allowed by § 6926, and is no doubt convenient and very desirable. But there is nothing to prevent proof of notice by testimony on the trial. Doyle v. Howard, 16 Mich., 261. By some oversight affidavits of the notice of the earlier date were appended by some one to the deed, probably by the sheriff. The deed itself shows that it was not made under any such notice, and the affidavits form no part of it. It cannot be affected by any such facts. If the sale was made in due course of law and the deed properly executed, it cannot be invalidated by any recording of wrong affidavits, where the genuine proofs are not required to be recorded. It seems to be imagined that statutory foreclosures are to be treated as subject to the same rigorous rules that apply to proceedings in invitum contrary to the course of the common law, and that intendments are to be made-against them. No doubt every statutory requirement must be adhered to; but these are sales by contract, where the proceeding is authorized by the mortgagor himself to save the expense and trouble of proceedings in equity. Such titles would be worthless if any unreasonable restrictions were laid on them, and the mortgagor would in most cases find it difficult to obtain money on fair terms without some assurance that the enforcement of the security would not be troublesome. No substantial right should be destroyed and no statutory requirement can be overlooked. But all provisions must be reasonably construed. The defendants showed a complete title as against plaintiff, and the jury should have been directed to find in their favor. Judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Marston, J. Complainant as administrator of tbe estate of Harriet Kilburn, deceased, files his bill of complaint alleging therein that in- April, 1870, Mrs. Kilburn, pursuant to certain negotiations, conveyed by warranty deed certain described premises to Harry Allen in consideration of the sum of one thousand dollars; that no part of said purchase money was then or has ever since been paid; alleges that such consideration and interest thereon is a legal and equitable lien upon the premises conveyed and constitutes an equitable mortgage upon the premises and prays for a foreclosure and sale of the premises for the payment thereof. The complainant in his bill also sets forth that at the time this conveyance was made to Allen, he, Allen, agreed to pay the consideration by procuring William Telford to convey to Mrs. Kilburn by a good and sufficiént deed forty acres of land then occupied as a homestead by Telford, and that he, Allen, would pay Telford'for the same in certain notes which he, Allen, then held against divers persons; that Telford had agreed to accept the same and execute said deed; that Allen had not procured such conveyance and that Telford refused to convey the same to Mrs. Kilburn. It is farther set forth in the bill of complaint that on the 21st day of April, 1870, being the next day after Mrs. Kilburn had conveyed to Allen, Mrs. Kilburn and Allen went to Telford’s to complete the arrangement by procuring the deed from Telford; that Telford refused to mate such a conveyance; that Mrs. Kilburn then refused to have anything farther to do with the matter, demanded back her deed of conveyance to Allen who refused to return the same, but told her she could have certain notes hereafter referred to; that said notes were taken from the table by her husband, John Dayment, who said he would go and see a lawyer about the matter; that he went away with the notes, left the country and never returned. The bill farther charges that defendant Allen accompanied Dayment in pursuance of some pre-arrangement and obtained from Dayment the notes and converted them to his own use, and that - all these proceedings on the part of Allen, Telford and Dayment were parts of a scheme to cheat, and defraud Mrs. Kilburn; that her marriage to Dayment was a part of the same scheme, Dayment being a transient person, unknown in that region, and was but twenty-five years of age, while Mrs. Kilburn was forty. 'Defendant in his answer admits the conveyance to him in April, 1870, by Mrs. Kilburn; the payment to her of the agreed consideration,, .and the taking and retaining possession of the property with the knowledge and acquiescence of Mrs. Kilburn; sets up the agreement and transaction in detail, and denies all charges of fraud. The defense may be more clearly set forth from the brief of counsel for defendant: I. That the theory of the complainant’s right to recover rests upon the statement that Allen obtained the deed from Mrs. Kilburn upon the sole'consideration that he would give her in exchange certain lands owned by Telford, and that he, Allen, would pay Telford therefor certain notes which he, Telford, had agreed to accept; that this part of the complainant’s case is not sustained by the proofs; that relief cannot be granted on evidence establishing a case not made by the bill, and that complainant has a full and adequate remedy at law under the case made by the bill. II. That the case made by the bill is unsupported by the proof. The correctness of defendant’s legal propositions cannot be questioned: their application to the facts in this case may be. Where fraud is alleged as the foundation .of the relief sought, it will be but seldom indeed that the complainant will be able to set forth fully the correct theory of the case in his bill. And this will be especially true -where the party defrauded has died and the proceedings are commenced by his representatives. Where parties contemplate the commission of a fraud, they usually intend to conduct .and carry out the entire matter not only in secret, but to so cover up their tracks that the entire negotiations will, upon their face, appear fair, reasonable and honest, the result alone indicating the successful accomplishment of a gross fraud. Under such circumstances, to require the complainant, or in case of her death, her representatives, to set forth clearly and correctly the true theory of the fraudulent intent and purpose and the means adopted, to accomplish it, would, in many cases, be equivalent to a denial of all relief. The complainant is but required to set forth the substance of the transaction and the result, and although the evidence when all in, may show that the fraud charged was successfully accomplished, but in some respects in a manner different from that charged, yet the complainant will not thereby be denied relief. Tong v. Marvin, 15 Mich., 64; Wilson v. Eggleston, 27 Mich., 261. It is unnecessary to discuss at length the evidence in this case. We are fully satisfied that Mrs. Kilburn did not at any time contemplate a sale, or agree to sell her land to the defendant for notes which he held amounting to one thousand dollars, or for any other sum. Her object and intention clearly was to make an exchange of her property for forty acres of Telford’s land with the buildings thereon, and Allen and Telford well knew such was her sole aim in making the conveyance. Mrs. Kilburn expressly refused to convey her land to Allen, or even to execute the conveyance, although the notes he was to turn out and which Telford had agreed to accept, were offered to her, and she only executed the conveyance upon being assured by an attorney that it would have no force or effect until delivered. Afterwards and on the same day, upon Telford’s making and executing a deed to her of his forty acres, she delivered the deed of her land to Allen. The notes were given to Telford, her deed to Allen was at once recorded, and the Telford deed returned to him in order to procure his wife’s signature thereto. Upon the following day Mrs. Kilburn called at Telford’s for tbe deed, Mrs. Telford refused to sign it, and Mr. Telford placed the notes he had received the previous day upon the table. Mrs. Kilburn did not then accept the notes in payment for her land, but directed Dayment and Allen to take the notes and adopt the necessary measures to compel Mrs. Telford to execute the deed. -Dayment and Allen took the notes and went to Jackson on the same day, and were advised that Mrs. Telford could not be compelled to execute a deed conveying her homestead under such circumstances. Dayment then proceeded to sell the notes to a relative of Allen’s and left the country. There are some very suspicious circumstances in this case, and there is strong evidence throughout, tending to show that a preconceived plan was agreed upon to cheat Mrs. Kilburn out of her property and get her out of the neighborhood. It is difficult to believe that Dayment and Allen could have gone to Jackson for the purpose stated— that on the evening of the same day Dayment should have offered to sell these notes, payable to Allen or bearer, to Allen’s nephew — that Allen should have gone to this same nephew’s house, remained there- all night, taking breakfast there the next morning and then go to his nephew’s store, and yet they, Allen and his nephew, not have seen each other. It is equally difficult to believe that this nephew of Allen’s should have purchased these notes in the manner claimed, without making any enquiries of Allen concerning them, and that some of the notes should 'afterwards be found in the possession of Allen, and ■ yet the entire transaction be an honest one. We are of opinion that a deep and well laid plan was entered into to cheat and defraud Mrs. Kilburn of her lands, and that the parties but succeeded too well in accomplishing i¡he object they had in view. It is claimed however that some time afterwards Mrs. Kilburn settled with Mr. Allen, paying him a small balance found his due and giving him possession of the property; that she thereby, with a full knowledge .of the facts, ratified the transaction, and that she and her representatives cannot now be heard to complain. This position might be a complete answer to any attempt which otherwise might have been made, tp have the conveyance from Mrs. Kilburn to Allen set aside on account of the fraud. Such is not however this case. The complainant proceeds upon the theory of a completed sale, and alleges a failure on the part of the grantee to pay the agreed consideration therefor. Stripped of all question of fraud, the case would stand thus: a conveyance by Mrs. Kilburn to Allen of certain lands in consideration of an agreement on his part that certain other lands should be conveyed to her in lieu thereof, and after obtaining the conveyance to himself a failure on his part to carry out his share of the agreement, he at the same time retaining the title and possession of the lands conveyed to him. Under such circumstances, where the party fraudulently obtained the conveyance having at the time no intention of procuring a conveyance to his grantor, equity should have no hesitation in treating the transaction as a completed sale and requiring him to pay the value of the premises he received and retained. The mere fact that the person defrauded might have a remedy at law would not deprive her from coming into a court of chancery and having the agreed consideration, or the value of the premises, declared to be an equitable lien upon the lands. Bradley v. Bosley, 1 Barb. Ch., 125; Tobey v. McAllister, 9 Wis., 463; Wickman v. Robinson, 14 Wis., 493. The decree of the court below must be reversed and the cause remanded with instructions that a decree be entered in favor of complainant in accordance with this opinion. The defendant should be allowed ninety days to make payment of the amount due. Complainant to recover costs of both courts. Campbell, C. J. and Graves J. concurred. Cooley, J., did not sit in this case.

Per Curiam. The relator noticed his ease for trial in due time for the March term, and the only question that can be made of his right to have it go upon the docket arises from the fact that the plea was not filed when the notice was given. But we think this was no objection. Appeals from commissioners in probate cases are always at issue, and the making up of a new issue in the circuit court is a mere matter of form, and seldom necessary or important. A direction that such an issue be framed need not delay proceedings to a trial. Mandamus granted.

Graves, J. This is a hearing on an order to show cause why this court should not award mandamus to compel the rescission of an order made in the circuit court for Kent county. The order required relators in a suit against them by one Lewis C. Butts to discover and produce and then deposit with the clerk for twenty days certain of their private books, namely: their letter-copy books, order books, shipping books and sales books used by their firm of J. Cummer & Son in their business of manufacturing and dealing in lumber, between the 28th day of November, 1876, and the 1st day of May, 1877. Subsequent to the order the relators moved that it be vacated and this was refused. It is urged by way of preliminary objection to the present proceeding that the action below was the exercise of judicial discretion and is not reviewable in this way. If this position is correct, the relators have no remedy, though it should be admitted that the order complained of was in violation of their legal right. No redress could be obtained by writ of error, and unless a correction by mandamus is proper, this court is unable to intervene. The power of a court of law to order discovery is not only an important power, but is one of great delicacy. It is exceptional and does not belong to the ordinary course of the court, and the instances in which it may be exercised, now that parties are made competent, must be exceedingly rare. The practice is exposed to great injustice and mischief, and the jurisdiction is at the best little less than invidious. It seems plain that a court expressly commissioned by the constitution to supervise the proceedings of the circuit court must be deemed empowered to perform that function in regard to such proceedings-as that in question, and inasmuch as no other mode is provided and mandamus is a proceeding designed to meet such a necessity, it is considered as appropriate. It appears that in November, 1876, relators entered into an agreement with Butts by which he was to travel in certain States and obtain orders on them for lumber upon a commission of one dollar per thousand feet, and that either party might put an end to the arrangement on sixty days’ notice. It is not necessary to explain all the facts or to repeat the terms of the agreement. The parties proceeded to act under it, but in the spring of 1877 such action ceased. Butts sued on the agreement and alleged that relators had refused to observe it, and claimed commissions and damages for gains he averred he was prevented from making. After the pleadings were in, he petitioned for the discovery and exhibition of relator’s books before mentioned to enable him to prepare for trial. Such applications rest with great reason upon very strict ground, and they cannot be lawfully granted unless it is shown affirmatively and with great certainty and distinctness that a real necessity exists. Mere convenience or curiosity or surmise of need afford no basis for the proceeding. The authorities are too numerous to be cited here. It has been decided that when defendants have already rendered an account, an order will not be made to enable the plaintiff to decide upon its accuracy. Ruberry v. Binns, 5 Bosw., 685. This was an action against factors, and in principle it has a direct bearing. It appeared by Butt’s petition that relators furnished him with an account or statement of transactions, and that his object in seeking access to the books was to inform himself therefrom, as a step in getting ready to try the case, that the account or statement was incorrect. It has also been decided often that it must appear from the application that the production is indispensably necessary (Woods v. De Figaniere, 1 Robert., 681; McAllister v. Pond, 6 Duer, 702; M’Keon v. Lane, 2 Hall, 520 [2d ed., 558]; Moore v. McIntosh, 18 Wend., 529); and ability to obtain it, together with the testimony of the party, by subpoena duces tecum, must be negatived. Commercial Bank of Albany v. Dunham, 13 How. Pr., 541; Van Zandt v. Cobb, 12 id., 544; Brevoort v. Warner, 8 id., 321; Stalker v. Gaunt, 12 Legal Obsr., 124. Now the petition presented to the court below did not establish any strict necessity, or indeed any necessity at all. It did not make out that Butts had not the requisite information in his own possession, or exclude his having ability to prove the facts, or obtain the knowledge he desired by other available means. Besides, nothing was brought forward or is now suggested to preclude the supposition of ability to obtain an exhibition of the books and the testimony of relators by subpoena. The order was not a legitimate exercise of jurisdiction and was against relators’ legal right. We think mandamus should issue. The other Justices concurred.

Graves, J. April 7th, 1875, Cook brought ejectment against Knowles for one eighty acre lot in Jackson county. Both parties asserted title under John B. Tuttle, Cook as purchaser on an execution sale under a judgment in his favor rendered in an attachment suit against Tuttle, and the defendant Knowles as grantee of his father Benjamin Knowles who held as grantee of Tuttle. The attachment was levied on the land November 21st, 1854. On the 11th of April, 1855, judgment was given; on the 14th execution was issued and two days later was levied on the land. June 9th, 1855, the sheriff sold to Cook, and on October 18th, 1856, deeded to him pursuant to the levy and sale. Knowles gave in evidence first a record of a deed of the land from Tuttle and wife to Benjamin Knowles. The deed and certificate of acknowledgement bore date November 11th, 1854, or ten days earlier than the levy of the attachment. The date of the record was, however, December 1st, 1854, or some ten days later than the levy. Knowles also made proof of the record of a deed from his father Benjamin to himself. This deed was dated January 20th, 1870; the record, April 17th, 1875. Cook produced one Snow as a witness and offered to prove by him certain conversations on the premises between Benjamin Knowles and Tuttle in the fore part of December, 1854, relating to the deed from the latter to the former and the time of its delivery, and tending to show that in fact it was not delivered until after the levy was made under the attachment, and when the offer of this evidence was made the counsel for Cook in reply to a question by the court, observed that it was not expected to show that when the suggested conversation occurred any new bargain was made or that anything was done in respect to the deed; that the conversation related to what had been done just previously. The court1 sustained an objection to the offer, and refused to allow the evidence to be given. Whether the deed from Tuttle to Benjamin Knowles was in fact delivered before or after the levy of the attachment was a vital question, and the true date of the fact of delivery was lawfully provable by matter outside the deed and by parol. Mayburry v. Brien, 15 Pet., 21-38; Woodward v. Woodward, 4 Halst. Ch., 779, and authorities. An attempt to make the instrument itself conclusive of the actual date of its delivery would lead to the absurdity of seeking to allow it to operate as a deed for the very purpose of proving it to be one. ■ Was the conversation between Tuttle, the attachment debtor and predecessor in title of both parties, with Benjamin Knowles, the immediate grantee of Tuttle and grantor of defendant, admissible to show that the deed from Tuttle was not delivered, and hence that the grant did not take effect, until after the levy. The conversation occurred, according to the offer, ■ on the premises and a few days after the deed from Tuttle was placed on record, and it related to matters not then occurring, but . to such as had taken place a little while before. If the offer had been allowed and the evidence had been given, it would have been evidence of an admission by Benjamin Knowles, the purchaser from the execution debtor and the grantor of defendant, while in possession and before sale to defendant, that the deed was in fact delivered after the levy, and further that his holding was actually subordinate to the levy.' Indeed, it would have been evidence tending to show that Tuttle, the attachment debtor, and Benjamin Knowles, his grantee and the grantor of defendant, combined to make use of the deed with an untrue date in order to overreach the attachment levy. In speaking of the proposed evidence in this manner, it is not intended to give any opinion of its weight or trustworthiness. Whether a jury would give it any credence, or if any, with what effect, is not the inquiry now. The present question concerns its competency alone, — relates to its fitness to be considered by the jury at all. There is some confusion in the books concerning the occasions proper for admitting declara tions of strangers to the cause in disparagement of title and the ends to which it ought to be restricted. But I think the evidence which was offered and rejected here was admissible upon principles settled in this State and generally approved elsewhere. The cases are too numerous to be fully cited. A few may be specially referred to, and the first to be noticed is Bower v. Earl, 18 Mich., 367. The action was ejectment, and we held that statements made by a former grantor of one of the parties, while in possession, concerning the extent of his holding and the place of the dividing line between him and an adjoining proprietor, were competent to explain the nature and extent of his possession, and we expressly approved the doctrine stated by Mr. Greenleaf. 1 Greenleaf's Ev., § 109. In Norton v. Pettibone, 7 Conn., 319, an ejectment case, the plaintiff claimed title by virtue of the •levy of an execution in his favor against Alva Marks, made March 11th, 1825. The defendants were the widow and heir-at-law of Alexander Pettibone, from whom they claimed. His title was by deed from Zechariah Marks who derived title from Alva Marks, the execution debtor before mentioned. The plaintiff contended that the deed from Alva to Zechariah was made to defraud Alva’s creditors, and in support of this charge he offered to prove by one Lewis that Zechariah, after the deed to him and after he had taken possession under it and before his deed to Pettibone, had acknowledged that the deed from Alva was without consideration and made to defraud Alva’s creditors. The evidence was duly objected to but admitted. In sustaining the ruling, Judge Daggett, speaking for the court, observed: “ That such declarations, so made, are admissible, I had supposed to have been too long and too well settled to be doubted. It has been so ruled more than twenty times within the last forty years. Declarations of a person, while in possession of the premises, against his title, are always admissible, not only against him,- but against those who claim under him.” After citing several cases,, and among them, Beers v. Hawley, 2 Conn., 467, he added that the point was considered in that ease “and the whole court concurred in the admissibility of the evidence;” that Judges Swift, Hosmer and Gould respectively gave opinions, and all recognized in direct terms this doctrine. Bridge v. Eggleston, 14 Mass., 245, was a writ of entry. The demandant claimed under an execution he levied on the premises as the property of Joseph Goodwin, November ,15th, 1811. The tenant claimed to hold under a deed from the same Goodwin, dated October 6th, 1809, acknowledged and recorded. The demandant undertook to show that this deed was made without good and valuable consideration, and was not in good faith, but made to delay or defeat the creditors of Goodwin. It was admitted that demandant was Goodwin’s creditor at the date of the deed and long before, — his claim originating in consequence of the liability of Goodwin and other directors of the Berkshire bank in their individual capacity. The demandant proved that the bank stopped payment in August, 1809. The court admitted, against objection, evidence of declarations by Goodwin before his deed to Eggleston tending to prove a fraudulent purpose on his part to dispose of his property in order to keep it away from creditors, and it was held on error that the evidence was proper for the jury. Jackson v. Bard, 4 Johns., 230, was an action of ejectment. The plaintiff made title under a mortgage given by one Dickenson. The defendant claimed under one Smith, who assumed to be grantee of Dickenson. The plaintiff insisted that the deed from Dickenson to Smith was antedated for the purpose of overreaching the mortgage, and he was allowed to prove admissions made by Smith while he was in possession and before he sold, that the deed was antedated, and other statements tending to prove the fact. On error the court said: “ These declarations would have been good against Smith, and are also competent evidence against all who claim under him. This principle has been repeatedly recognized, both in onr own and in the English courts. * * Whether the deed from Dickenson to Smith was actually executed at the time it bears date, was a question proper for the consideration of the jury.” The following cases may be consulted also: Weidman v. Kohr, 4 Sergt. & Rawle, 174; Pickering v. Reynolds, 119 Mass., 111; Padgett v. Lawrence, 10 Paige, 170; Vrooman v. King, 36 N. Y., 477; Tipton v. Ross, 10 Ohio, 273; Woolway v. Rowe, 1 Ad. & El., 114; Noyes v. Morrill, 108 Mass., 396; Crippen v. Morss, 49 N. Y., 63; Newlin v. Lyon, id., 661; Smith v. Powers, 15 N. H., 546; Hobbs v. Cram, 22 N. H., 130; Walcott v. Keith, id., 196; West Cambridge v. Lexington, 2 Pick., 536; Regina v. Exeter, L. R., 4 Q. B., 341. Under the doctrine recognized in Bower v. Earl and expounded in the other cases it seems quite plain that the proof which was offered and rejected was admissible to the jury. The defendant further contends that assuming the rejection of the offered proof to have been error, still it was not an error which worked any prejudice, because, as he claims, the plaintiff, as appears from the record, failed to make out a case. The grounds of this position require only a few words. First, it is said the plaintiff was bound to make proof that the sheriff’s sale was advertised, and yet gave no evidence tending to show it. It is a sufficient answer to say that the want of notice would not in this State invalidate the title. The sheriff may be liable, but the innocent purchaser cannot be prejudiced. The certificate of sale and deed are his evidence of title. Spafford v. Beach, 2 Doug. (Mich.), 150. Second, it is said the premises had been held adversely for twenty years when this suit was commenced. There is no decisive proof in the record of a continuous possession by the defendant and his father prior to April 7th, 1875, when the suit was commenced. But one thing is quite clear, and it is that the plain-. tiff acquired no complete legal title or any right of possession until October, 1856, when the redemption was over and he obtained his deed, and this was less than twenty years before suit. No one could raise a right against him to the premises by an adverse holding whilst he was not invested with the legal title and could not enter at all for his own protection. There could be no such thing as a holding adverse to him so long as he had no right or title under which to make entry or justify possession. Not having a right of entry, and hence not being kept out, no right of his could be cut off by the possession of others. It is unnecessary to advert to other considerations at. present which the case suggests. The judgment must be reversed with costs and a new trial ordered. Marston, J., concurred.

Marston, J. The plaintiff Long brought an action of covenant for breach of warranty. In his declaration, in setting up the breach, he averred that one John McFee, who had a lawful right and title to the premises, “by due process of law, entered into the same, and upon the possession of said lands and premises, and ejected, expelled and removed the said plaintiff against his will from the possession, etc., * * * and that the legal title or right of the said John McFee, by which he attained his judgment of ejectment against the said plaintiff, was not” etc. The proof showed an action of ejectment to have been commenced by McFee against Long to recover these and other premises, a verdict of the jury in favor of the plaintiff in that action in which they found the value of certain improvements and also of the premises had there been no improvements, an election by the plaintiff to abandon the premises to the defendant at the value as estimated by the jury, and thereupon a judgment rendered in favor of the plaintiff and against the defendant in that case for the sum of eight hundred dollars, by the jury so estimated, with costs. The defendant on the trial below in this case claimed that the evidence did not support the allegation in the declaration; that the declaration averred a judgment in an action of ejectment and an eviction thereunder, whereas the judgment offered in evidence was one for the payment of money only, and upon which a writ of possession could not issue. The court below held that the plaintiff must under his declaration prove a judgment in' ejectment according to Comp. L., § 6234, and gave plaintiff leave to amend his declaration, which was not accepted. We think the court was correct in holding that there was a variance between the allegation in the declaration and the proofs offered. In my opinion the declaration, taken altogether, avers the usual and ordinary judgment in ejectment in favor of the plaintiff, a writ issued thereon, and an actual eviction by virtue thereof, — whereas the proof showed a special money judgment, and a constructive eviction. We must not be understood as holding that under the proofs in this case the plaintiff was not entitled to recover, had his declaration been framed differently, or that a constructive eviction is not sufficient. These questions do not properly arise as the case now stands, and we do not, therefore, express any opinion thereon. The plaintiff having in his declaration deemed it proper and necessary to allege a judgment and ouster thereunder, must establish the same by proper proof. Kennedy v. Newman, 1 Sandf., 187; McCormick v. Bay City, 23 Mich., 457; Underwood v. Waldron, 12 Mich., 73; Harrington v. Worden, 1 Mich., 487. The judgment must be affirmed with costs. The other Justices concurred.

Campbell, C. J. Leave is asked to file an information in the nature of a quo warranto to deprive the respondent of the franchise, as it is claimed to be, of laying its gas pipes and distributing gas through the streets of Detroit. The ground of the application is that the company violated some of the terms of an agreement imposing conditions against making combinations with other companies and doing certain other acts, regarded by the city of Detroit as important conditions of its assent to allowing the respondent to use its privileges within the city. The statute providing for the incorporation of gas companies allows them to lay pipes through the streets, lanes and squares of any city, town or village where they are located “with the consent of the municipal authorities of said city, town, or village, under such reasonable regulations as they may prescribe.” The statutes do not allow an information in such cases as this is claimed to be, to be filed without leave, and they contemplate that leave shall only be granted for a plain violation of the laws regulating the corporation, or wrongs amounting to a surrender of its franchises, or “whenever it shall exercise any franchise or privilege not conferred upon it by law.” Comp. L., § 7085. The statute contemplates the punishment of corporations for nothing but violations of the laws and policy of the State. In the present instance the State has shown by the incorporating act that public policy is not opposed to and is in favor of allowing gas companies to exist, as they only can exist by having power to lay their pipes. The consent of the municipal corporation is required because the terms on which streets may be safely allowed to be occupied for the purposes of laying gas pipes can be best determined by leaving the regulation to be harmonized with all other exigencies by the authorities controlling their use. The law contemplates that permission will not be' unreasonably refused or unreasonably burdened, but regards the municipality as competent to determine the proper conditions for itself. The exercise of the power of using streets for laying gas pipes is rather an easement than a franchise, and a similar power is used as often for private drainage and other purposes as for more general purposes. It is a matter peculiarly local in its character, and which should always be to a reasonable extent under municipal supervision to prevent clashing among the many convenient uses to which ways must necessarily be subjected, for water, drainage and other urban needs. But the permission to lay these pipes does not differ in any respect from that required for laying railways over land, or ditches through it. It is not a State franchise, but a mere grant of authority, which, whether coming from private owners, or public agents, rests in contract or license, and in nothing else. A violation of the contract, or an unauthorized intrusion, must be redressed as all ordinary wrongs are redressed, by the usual legal remedies. It in no way concerns the State whether the power is granted or withheld, nor whether the corporation has or has not fulfilled its agreements. The injured party has a remedy for any grievance, but the State is no more interested than it would be in the question whether or not a railroad company has lawfully acquired its right of way. This court has heretofore refused to recognize the encroachment of a corporation on a highway as subject to be reached by quo warranto, and we discover no better reason for interfering in the present case. The application must be denied. The other Justices concurred.

Cooley, J. The defendant in error as administrator of Julia B. Stark brought suit against the railway company under the statute which gives an action to the personal representative of one whose death has been caused by the wrongful act, neglect or default of another. The death occurred at East Saginaw in September, 1875, in consequence of falling or being thrown under the cars while making the attempt to get upon them. We learn from the record that the State fair wras being held at East Saginaw at the time of the accident, and that the deceased, who was the wife of the plaintiff, had gone from her home in Birch Run to attend it. She expected to return by the ears of defendant, and the train she intended to take was advertised to leave at five o’clock. Some time before that hour the company’s servants were engaged in moving cars and engines about the tracks, making up trains for freight and passengers. At fifteen minutes past four o’clock, and perhaps somewhat later, a train with engine attached was standing by the platform where passengers were accustomed to take the cars, and upon some of the cars were placards announcing that that train was for Flint and other points in the direction of Birch Bun. The putting of these placards on the ears appears to have been a mistake, as the train was not intended for the south; and they were taken off when attention was called to them, though not until after the accident had occurred. Mrs. Stark seeing the train standing by the platform, and apparently sup posing it to be the one she should take, started in haste to get aboard. The evidence all indicates that she was exaitecl with the fear of being left. She was quite a large woman, fifty-six years of age, and was seriously encumbered with luggage, but with her left hand she took hold of the guard about the platform of one of the cars, and made the attempt to get aboard, a man on the platform taking hold of her right hand to assist her. The witnesses disagree as to whether the train was in motion before she made this effort, the defendant’s witnesses testifying that it was, while the plaintiff’s witnesses gave evidence that the train was moved with a sudden jerk just as Mrs. Stark lifted her foot to step upon the platform. Either because of the motion, or because Mrs. Stark’s foot was caught in her dress, as some of the witnesses thought, the man who was endeavoring to assist her lost his hold, and she fell beneath the cars and was run over. There was no dispute whatever that when the accident occurred it was still some time before the cars should leave; the lowest estimate placing it at twenty minutes. It seems also to have been proved beyond controversy that servants of the railway company called out several times to persons who seemed disposed to get upon the cars, that this train was not the train for them to take. There was also evidence from a number of witnesses that Mrs. Stark when eagerly rushing for the cars was expressly told by them or by others in their hearing that it was not yet time for the train to go, and. was warned against the attempt to get aboard; but the jury for some reason put aside all this evidence, and expressly found that she was not warned at all. That she was excited, anxious and eager to get aboard in haste is not left in doubt by the evidence, and this eagerness it is somewhat difficult to account for except upon the theory of the defendant, that the train was actually in motion when she made the attempt, and that she feared being left. Several persons noticed her actions, and appear to have been alarmed for her safety. The questions of law made on the argument are first, .Whether a prima facie case of negligence was made out against the railway company, and if so, then second, Whether a right of action is precluded by contributory negligence on the part of the plaintiff’s intestate. Negligence consists in the failure to observe that degree of care which the law requires for the protection of the interests likely to be injuriously affected by the want of it. In making out negligence, the first requisite is to show the existence of the duty which has been neglected. That duty is necessarily set out in the declaration, .and the neglect averred, and a failure to prove it is a failure to make out the plaintiff’s case. The duty a breach of which is relied upon in the present case is set out in the declaration as follows: “ The plaintiff says that on the 17th day of September, A. D. 1875, the said Julia B. Stark, deceased, in her lifetime, being at East Saginaw, was desirous of being carried by said defendant, in and on its train of cars, as a passenger, from East Saginaw to Birch Bun, in said county, and Said deceased was ready aixd willing to pay the usual price or fare to said company for such carriage, and the plaintiff avers that said defendant was willing to carry said deceased, and all others who wished to be so carried, and for the purpose of carrying said deceased, and all others who were desirous of being carried by defendant; said defendant, on the 17th day of September 1, A. I). 1875, caxxsed a train of its cars to be drawn to its station at the city of East Saginaw, in said county, at or near the place where the fair of the Michigan State Agricultural Society was thexx being held in said city, for the purpose of receiving in and upon its said train, for carriage from East Saginaw to Birch Bun, said deceased and others who wished to be carried by said defendant, and plaintiff avers that it thereupon became and was the duty of defendant, to allow and permit the said deceased, and all others who wished to enter upon said train, to do so before the same should be started, and while standing still so they could safely enter upon said train, and said plaintiff avers that while said deceased, with the consent and permission of said defendant, with all due care and diligence on her part, was entering upon one of the cars of said train, for the purpose aforesaid, said defendant negligently and carelessly caused the said train, on which deceased was then entering, to be violently and suddenly started, jerked and moved, by means whereof such deceased, while in the exercise of proper care and diligence, was violently thrown from the car on which she was entering at the time said train was so suddenly started, jerked and moved, and was thrown onto the ground between the car on which she was about entering and the car behind that one, and the car behind the one she wras so entering ran over her, and she was thereby then and there killed.” Here the duty supposed to have been neglected is very plainly and specifically described, and it is seen to have consisted in the duty to receive the intestate with care upon the train then drawn up to the platform, on her offering herself for the purpose. Whether any such duty was incumbent upon the railroad company must depend first, upon whether the train mentioned was the one intended for the particular trip, and second, upon its being then ready for the receipt of passengers upon it. If this train was not the one which was made up to be sent south from Bast Saginaw at five o’clock, there was obviously no duty imposed upon the railway company to receive upon it any one who designed going in that direction at the hour named; and if this train had been made up for that purpose, and only chanced to be at the station some considerable time before the hour for starting, it is equally obvious that there could have been no obligation on the part of the railway company to leave it standing there for persons to enter until the hour should arrive. All that can justly be required of the company is that its trains shall stand at the station a reasonable time to permit people to enter them before the hour announced for departure; and twenty or thirty minutes was not required for any such purpose, and was therefore more than could reasonably have been demanded. There was consequently no breach of duty on the part of the railway company in failing to leave the train standing at the station until the hour of departure had arrived, and it might right fully have been moved back and forth as the convenience of the company in making up and stationing other trains might require. But the evidence shows without contradiction that this particular train was not intended for this trip at all. The plaintiff, however, answers this showing by evidence of the placards being upon the cars, which announced to those who should observe them that this train was to go south at five o’clock. It is said with entire justice that the public had a right to put faith in these placards, and that if there was any mistake in the announcement, the consequences should fall upon the railway company whose fault it was. But the fact of the mistake could impose upon the company no duty to send upon the trip a train not suited to it or not designed for it: it was both lawful and proper to correct the mistake at any time allowing reasonable time for people to get aboard before the hour for leaving, and however much any individual may have been inconvieneed thereby, his complaint must have been of something else than a failure to perform the particular duty of sending upon the advertised trip a train not intended for it. "When therefore it appeared beyond question1 that the railway company did not “cause a train of its' cars to be drawn to its station” “for the purpose of receiving in and upon its said train for carriage from Bast Saginaw to Birch Bun said deceased and others who wished to be carried by said defendant,” this fact disproved any obligation on the part of the defendant “to allow and permit the said deceased and all others who wished to enter upon said train to do so before the same should- be started.” The particular duty relied upon was disproved, and the alleged cause of action was not established. It is undoubtedly the duty of railway companies not to mislead the public by their announcements, and for a breach of this duty an action may lie when damage is shown. But whoever sues for such an injury must count upon it: he cannot sue for the breach of one duty and recover for the breach of another. Besides, he must show that the injury followed the breach; and in this case there was no showing that the deceased saw and was misled by the placards, and the evidence tended to show that she was relying upon what she could learn by inquiry of the persons about her. This view of the case renders it unnecessary and perhaps improper to discuss the question of contributory negligence which received so much attention at the hands of counsel on the argument. The judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.

Campbell, C. J. The will of Isaac Pierce was admitted to probate December 2d, 1873. It was executed July 29, 1871, and he died July 12, 1873. On appeal by certain of his heirs at law, the will was held invalid. Error is brought against that judgment. The will gave a large portion of the property to his second wife and to her children, who were under age. His children by a former wife, from whom he was divorced, were much older. Two of his sons he made no provision for, saying they had been provided for before. To three others of his older children he devised land, and to- a married daughter he made a money bequest. He married his second wife, the plaintiff in error Emeline E. Pierce, in 1855, sixteen years before the date of- the will, and eighteen years before his death. The alleged objections to the will were incapacity generally, and from intoxication and undue influence. There was no evidence of general incapacity, the proof being uncontradicted that he was in his right mind. The only questions worthy of consideration arise out of the admission or 'exclusion of testimony, and rulings upon the other points, and certain complaints of the action of the court. Before going into the general merits it may be proper to refer to two classes of objections to the rulings and course on the trial. It is claimed that certain rulings of the court were based on an omission of the counsel for plaintiffs in error to frame questions on the suggestion of the judge. It is not desirable that we who were not present at the trial should undertake to pass upon the merits of the occasions which led to some apparent loss of equanimity. But as matter of law, we are of opinion that rulings upon the admission or rejection of testimony must be based entirely on the legal quality of | the testimony offered. There is also in several instances what appears to be inconsistency in rulings as to the proper scope of cross-examination. The view which we take of the main questions in the cause renders most of 'these unimportant. As our own previous decisions have laid down with some fulness the rules applicable to cross-examination, we need not attempt to go over that ground now. There is also an exception taken to the action of the court concerning the verdict, which is of practical importance. It appears from the facts set out by the judge that the jury retired to their room on Tuesday afternoon. On Wednesday afternoon the officer in charge was requested to inform the judge that they could not agree. Thereupon the judge directed the officer to tell them “ The judge does not believe it yet, and you might say to them that it is essential they agree to-night, as I am going away, and won’t be back until day after to-morrow, and they might not get discharged until I come back, as Judge Coolidge is going to be here.” The verdict was returned within an hour thereafter. The judge states that at the time one juror, who is named, was the only one holding out, and that he had partly consented, and from his character it was not to be presumed he was influenced by the message. Inasmuch as it is a very plain violation of public policy to allow any testimony concerning the individual views of jurymen on a case, the question of the propriety of the judge’s action- cannot be made dependent on any such testimony. If it were, it is enough to say that the juror himself made no statement on the subject, and the oath of three jurors that in their opinion the verdict was not influenced by the message, would be of no account as evidence of that result. We cannot but think the tendency of the - message was to drive the jury into action which might not have been taken otherwise. There is no legal or moral presumption that before a jury has agreed will justify any speculation on the probable result. The one may be right as well as the eleven, and if right, may be able to persuade them. We certainly cannot say that there is anything in the present record which would render such a result impossible. And it is very possible at least not only that a message of the kind here given would be regarded by the outstanding juror as a somewhat strong intimation of the judge’s opinion concerning the plainness of the case, and the impropriety of holding-out, but also as a very harsh penalty for so doing. It needs no stretch of the imagination to infer what species of treatment a single juror might encounter beyond legitimate argument from associates who were likely to undergo an imprisonment which their agreement would not shorten. Jury trials can never be safe unless the verdict is made as far as possible the unbiased and free conclu sion of every juror. Every attempt to drive men into an agreement •which they would not have reached freely, is a perversion of justice. It may be discretionary with the trial judge to keep a jury out until he is satisfied an honest and free agreement is not to be expected. But there is no legal propriety in keeping a jury confined unreasonably after they have come to an agreement, and a verdict obtained by the suggestion of such an alternative is a verdict obtained by what it would be hard to distinguish from duress. It may be that the court is not bound to be present continually on the chances of an agreement; but any unusual and prolonged delay is not to be favored without giving an opportunity to find a sealed verdict. This error, however innocently committed, as we are bound to suppose it was, must nevertheless, in our opinion, be held fatal to the verdict. But the principal questions presented will be important on a new trial, and we proceed to consider them. First, as to the various points bearing on intoxication. Thére is no foundation in reason or authority, that we have found, for holding that a will is void for the intoxication of the testator. Intoxication is a term capable of no precise definition, and there- may be many degrees of it. If it exists to such' an extent as to deprive a testator of the power of controlling his conduct, and knowing what he is about, it will of course have a very evident bearing on his capacity. But if, on the other hand, the act which he does is one which his intoxication does not prevent him from doing with comprehension, it cannot of itself avoid it. It must always be remembered, that a will is not usually entirely or chiefly the result of the single interview when it is executed. It has nearly always been planned before and determined on. It does not require a very high degree of mental capacity to carry out a deliberate plan before adopted, and it is not impossible for a person more or less intoxicated to make a will which, is not the product of the intoxication. And we cannot agree with the circuit judge that the presumption against undue influence from the retention of a will uncancelled by a testator is any more significant than such retention would be in case of intoxication or any other temporary defect. It was held in White v. Bailey, 10 Mich., 155, that a finding by a jury that a will was the last will and testament of the decedent, and that at the time of executing it he was of sound disposing mind and memory, and capable of disposing of his property by will, necessarily negatived all undue influence. The statute makes no reference to particular causes of disturbance or incapacity. It lays' down a 'single standard, and all testimony against a will must be aimed at disproving the existence of the statutory capacity. If a person who is capable of knowing what he is about has a will in his possession that he is satisfied with and does not choose to cancel or destroy, the inference that it was not procured to be executed against his will or without his intelligent consent seems to arise as naturally in cases of asserted intoxication as in those of fraud or undue influence, and it would be equally unreasonable in either case to refuse to give it such weight as it naturally calls for. We are also of opinion that the question of the effect of intoxication upon the capacity of the intoxicated person is not a scientific question to be determined by experts, but one within common observation, depending on the facts of each case, and to be determined from those facts. And we are further of opinion that inasmuch as it is a temporary condition, the testimony must be confined to the time involved in the transaction in controversy. If Pierce was not overcome by drunkenness when he made his will, it is not important what his condition was on other occasions. Upon the question of undue influence, we have no doubt the general condition and surroundings of the deceased, and Ms relations with his wife — who is the only person supposed to have exercised any influence over him — may be properly shown for any period which can reasonably be regarded as bearing on the act of disposal of his property. But as the only important inquiry is concerning the pressure of undue influence at the very time of the will, the testimony to show facts of an inferential nature must be confined to what would be legitimately regarded as his then present relations. No technical nicety as to a few days or perhaps a few weeks can be demanded. But certainly, so far as domestic relations have any pertinency whatever on such questions, it is quite clear that if such influence is to be inferred from them the facts must be more readily shown by recent than by past relations, and the testimony of fresh events is less likely to be manufactured than that of transactions long past. We think there is very little testimony in the record on this subject which should have been admitted at all. The domestic scandals of many years ago could have no legitimate tendency to prove any modern state of things, and could only serve to burden_ the case with irrelevant and discreditable details that might and evidently did prejudice the jury, but which had no tendency whatever to show influence in 1871. The law does not confine the power of making wills to persons of blameless character, nor does it disqualify all others from being legatees. And whatever may have been the relations of the testator and his second wife eighteen or nineteen years before his death, and whatever may have been the circumstances of their marriage, it cannot be permissible to draw inferences from them concerning a condition of things many years thereafter, which if existing at all could be proved without difficulty as an existing fact, and not a possible contingency. With all this irrelevant testimony out of the case, we have found no very tangible evidence upon'the subject of undue influence at all, or of any interference by the wife with the husband’s actions. As we had occasion to hold in the recent ease of Latham v. Udell, ante p. 238, there is no rule which discourages the exercise by a wife of any such wifely influence over a husband as does not indicate that he is incapable of protecting himself adequately from her compulsion, and is practically not a free agent. Unless she either defrauds him or has secured a mastery over his will, which puts him under her control, he cannot be said to have been deprived of his disposing capacity. There is no foundation for any doctrine which would put a wife — no matter of what antecedents — on the footing of an acknowledged mistress. The very existence of marriage relations removes the ordinary occasion for rapacity, as well as the influence which works on the fear of exposure for purposes of extortion. And whether the original relations of the parties were blameless or not, the attempt to go back of many years of marriage for the purpose of raking up some discreditable transactions receives no suppprt in law, for there can be no reasonable inference of future wrong legitimately drawn from it. Neither can it be fairly inferred that the woman was the seducing party. Any inquiry beyond the immediate surroundings of the will and the relations which were near enough in time to throw light upon the subject would be purely conjectural and would, as it did here, fill the record with false issues. The doctrines applicable to undue influence were so fully discussed in Wallace v. Harris, 32 Mich., 380, that there is no occasion to repeat them here. And the rules laid down in Harring v. Allen, 25 Mich., 505, excluding the statements of a testator upon the specific fact of undue influence bear very strongly on several items of testimony in the record. We referred in Latham v. Udell, and we think it not' improper to refer again to the wrongs done under color of law, by the attempts which are becoming so common as to be dangerous to the security of private property, to overthrow wills because they do not suit the notions of those who determine their validity. The right to make a will as a testator chooses is as sacred as any other right, and a finding that the will is not valid which is based on any other foundation than a conscientious conviction of actual incapacity shown by the testimony is a disgraceful outrage on justice and a plain violation of the oath under which the conclusion is asserted. It is incumbent on courts to keep out of these cases everything which is merely calculated to create prejudice without throwing light on capacity, and prevent the establishment of fallacious tests which no one would think of acting on in business transactions, to throw doubt on testamentary capacity. We do not think it necessary to refer to the errors alleged on minor points which, whether well or ill founded, will not probably come up again. The plaintiffs in error were, we think, entitled to some charges which were not supplied by the charge actually given; but the whole theory of the contestants as to the proper range of testimony was so radically wrong that little service would be rendered on a new trial by special references to the charges asked or given on the facts as introduced. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Campbell, C. J. Respondent was convicted of an assault with, intent to murder his wife. The defense on which the questions before us are raised was temporary insanity. It is claimed the court below deprived him of the benefit of a reasonable doubt. The charge given was in substance that the element of malice was the important element in the case, and must be made out not merely by a preponderance of evidence, but beyond a reasonable doubt. The instruction given as to what was meant by a reasonable doubt was one of the clearest and most sensible definitions we have ever seen, and such as to be intelligible to any jury, — a merit not always possessed by the requests to charge which are sometimes made in such cases. And .after such an explanation the jury were told not to convict unless they had an abiding conviction to a moral certainty of the truth of the charge. It is 'claimed, however, that this clear and fair charge was nullified because the court when asked to make a separate charge upon the subject of the mental condition of respondent, is supposed to have qualified it injuriously. The court in regard to insanity charged that the respondent would be blameless in law, 1, if by reason of insanity he was not capable of knowing he was doing wrong, or 2, if he had not power to resist the temptation to violate the law. This was correctly charged. The law has no theories on the subject of insanity. It holds every one responsible who is compos mentis, or a free agent, and every one irresponsible who-is non compos mentis, or not having control of his mind. Unfortunately for the administration of justice persons are sometimes found who with small experience and large conceit have succeeded in formulating theories under which, if properly applied, there would be hardly enough sane persons found to sit upon juries or attend to business. If the term •“insanity” — which it may be remarked is not a term of the law at all — is so far enlarged as to include persons who have not only knowledge of wrong but also capacity to resist it, then it includes persons whom the law deems capable of crime, and is a phrase entirely inapplicable in civil or criminal law. There is" some reason to suppose, from the frame of this record, that what the respondent relied on as “temporary or emotional insanity” was that convenient form of it which enables a person who does not choose to bridle his passion, to allow it to get and keep the upper hand just long enough to enable him to commit an act of violence, and then subside. We had occasion to refer somewhat to this subject in Welch v. Ware, 32 Mich., 77; and we adhere to the views there expressed, that if a person voluntarily allows his passion to be indulged until it gets the temporary control over him, he is responsible for the condition in which he thus falls, as a man who becomes voluntarily intoxicated is liable for his drunken violence. It is certainly a strange and unsafe doctrine to tolerate that anything should be deemed innocent insanity which in no way affects the mind or conduct except on the one occasion when it is kindled by temporary anger and subsides with the gratification of that malignant passion. The rules of evidence as administered in this State, while they have opened the door very wide to the testimony of experts, without any overnice scrutiny into their expertness, do not recognize such mental unsoundness as requires legal inquiry, as necessarily involving scientific evidence, or as beyond the domain of common sense. In Regina v. Oxford, 9 C. & P., 525, Lord Denman, in a very plain and fair charge', made this remark: “It may be that medical men may be more in the habit of observing cases of this kind than other persons; and there may be cases in which medical testimony may be essential; but I cannot agree with the notion that moral insanity can be better judged of by medical men than by others.” We entirely concur in this remark, which is more strikingly applicable to such inquiries as seem to have arisen in the case at bar. We have liad some doubt whether any question is really raised on the record, inasmuch as we are not informed upon what sort of facts the defense of insanity was based. But assuming that there was something which might by possibility amount to a suspicion of insanity, and that the jury could have found that a “paroxysm of- temporary or emotional’ insanity” was really an insane condition in the case before them (which the judge ruled they might do), it is necessary to see what was complained of. The charge excepted to is this: “Whose duty is it to prove that the respondent was in a mental condition at the time of committing the assault, so as to make him responsible for his acts? I say to you, that the law is, that it is the duty of the defense to first put evidence into the case upon the subject of temporary or emotional insanity, which is the defense here set up; but after such evidence is put into the case by the defendant — that is evidence which tends to show that the respondent at the time in question here was laboring under a paroxysm of temporary or emotional insanity — (and such evidence has been put into this case by the defense) — then it becomes the duty of the prosecution to prove the sanity of the defendant by at least a fair preponderance of evidence, and unless you find they have done so, the defendant must be acquitted.” In other words the judge told the jury that upon this particular fact, the introduction of any evidence whatever by the defense made it necessary for the prosecution to introduce affirmative proof to more than counterbalance it. Inasmuch as it must be for the jury to determine whether or no the effect of the defendant’s testimony has been overcome in their minds by adequate proof, if they think the testimony of insanity is thus overcome it is difficult to conceive how they can further regard it, or how they could entertain a reasonable doubt on the case if convinced of the falsehood of the only ground on which the defense rested. It certainly is not true that the introduction of testimony of such insanity necessarily throws any burden on the prosecution; for the jury may not regard such testimony as of any weight whatever, and may not believe the opinions of the witnesses. It is only where the testimony creates a reasonable doubt, that there is any occasion to remove the doubt. We do not understand the charge as at all designed or calculated to qualify what had been before said on the general question of proving malice beyond a reasonable doubt. Nothing but the defense of insanity had any bearing on the question of malice, which without this could not— as we judge from the record — have been open to any controversy. We must take the whole charge together in construing it, and we cannot conceive that there was any likelihood of the jury being led to a wrong conclusion concerning the meaning of the judge. The particular request which it is complained he did not give is not so explained by facts in the record as to show that there would have been any propriety or necessity for it after what actually was given. We are not disposed to criticise with any great nicety the omission of courts to give requests which tend to distract the minds of jurors by calling special attention to metaphysical subtleties or to particular testimony. A jury knows without instruction that it has a right to consider any testimony which has been allowed to go before it, and to draw such inferences as naturally are drawn by each one of the body. When a court calls attention to bits of evidence or to particular witnesses, more than others, there is some danger that undue prominence will be given to what is so designated. It is at least quite as safe to avoid this practice, unless circumstances appear to require it. While,- as before suggested, we might find it difficult —even if the charge appeared to involve doubtful theories of law — to hold it error without a more full showing of its bearing than we can gather from this record, we think that taking the whole charge together there is no reason to believe the jury were misled to the prejudice of the respondent. We think judgment should be rendered on the verdict. The other Justices concurred. “A reasonable doubt is a i'air doubt growing out of the testimony in the case; it is not a mere imaginary, captious or possible doubt, but a fair doubt based upon reason and common sense; it is such a doubt as may leave your minds after a careful examination of all the evidence in the case, in that condition that you cannot say you have an abiding conviction to a moral certainty of the truth of the charge here made against the respondent.”

Graves, J. Chilson being street commissioner of the village of Plymouth, graded Church street along the front of premises of defendant in error, and Everson and West-fall assisted. The defendant in error, claiming that what had been thus done was a trespass upon her property, brought suit therefor. Plaintiffs in error pleaded in justification that the street was public, and that the acts complained of were done under the authority and according to the directions of the village council. She recovered a small judgment and defendants brought error. Several exceptions to rulings in regard to evidence appear in the record, but none are found which are material. They do not require special notice. Complaint is made that the judge refused to submit a specific question to the jury. An examination of the facts shows that what he did submit was better adapted to the case than the question offered, and was sufficient. There was no record evidence of any action by the council in relation to the change in the street, and verbal evidence was admitted, against objection, of a resolution by the council and of certain other proceedings. The judge charged that if the resolution ordered that the grade should be changed or the ditching should be done as the street committee might direct, it would not afford protection; but if it contained directions as to what should be done, and they were followed, and the defendants acted fairly in the matter, then they were protected. There is no sound objection to this charge open to the plaintiffs in error. The justification set up as defense was based on alleged directions by the council and not on discretionary orders of a committee, and the one could not be regarded as equivalent to the other. Moreover it was not competent for the council to delegate to a committee the power to grade and ditch a street according to their discretion. ' The expression in regard to their having acted fairly in the matter is excepted to. The remark was evidently meant to apply to their mode of following the directions in the resolution, and must have been so understood. It is not open to exception. Complaint is also made of the charge that there was no dispute but that the plaintiff below owned the prop erty and was in possession of it. The record supports the charge. There is nothing further in the ease entitled to notice. The judgment should be affirmed with costs. The other Justices concurred.

Graves, J. Ludlow, as plaintiff, recovered in the court below, and Hardy removed the cause to this court upon a case. In the fall of 1874 Ludlow sold a quantity of liquors to Hardy, and the sale is claimed to have been contrary to the act then in force to prevent the manufacture and sale of spirituous and intoxicating liquors as a beverage. After the repeal of that statute, Hardy, in consideration of the sale and of an extension of the time of payment, made a new promise, and in fact paid $22. The court below allowed recovery upon this new promise, and the only question is upon the validity of that ruling. Another point is suggested by plaintiff’s counsel, but it has no plausibility. He says that the record fails to. show that the sale occurred in Michigan, and hence that there is no evidence there was anything wrong in the first transaction. True, the record does not state in terms at what place the sale was made, but it sufficiently appears it was made where it was subject to the act before mentioned, and that is enough to require the record to be construed against the objection. The original transaction was within the operation of the statute, and was condemned by it. As a sale it was forbidden and illegal, and it was also forbidden and illegal as a gift; and although like transactions subse quent to the repeal of the statute referred to would not stand forbidden and illegal, the act in question, which occurred during the existence of the statute, has never become lawful. It had no legal vitality originally, and nothing has occurred since to breathe life into it. It has never been transformed into a valid act. Hence it has never been sufficient to afford any consideration for a promise. The judgment is erroneous and must be reversed, and judgment must be entered here for defendant with costs below and here; The other Justices concurred.

Per Curiam. This is a certiorari to review the pro-, ceedings of the drain commissioner of the township of Adams, in the county of Hillsdale, in laying out a drain ■and- assessing the cost on the persons supposed to be benefited. A number of objections are taken to the proceedings, but it is sufficient to notice as a fatal objection, that there is no evidence that the notice to the parties concerned, which the statute (Comp. L., § 1779; Laws 1875, p. 168) requires, was given. The proceedings must be quashed. People v. Highway Commissioners of Nankin, 14 Mich., 528; Sharpshooters’ Association v. Highway Commissioners of Hamtramck, 34 Mich., 36.

Marston, J. Complainants, children and heirs of Solomon B. Larzelere deceased, filed their bill of complaint, asking to have the administratrix’s sale of certain lands of which their father died seized, set aside and declared void; also to have a certain mortgage deed set aside; to have the administratrix release and convey said lands to the heirs; to have certain mortgages held by defend ant Starkweather released and surrendered, and for other purposes not necessary to be now mentioned. The ease was heard upon pleadings and proofs, and the bill of complaint dismissed. Complainants appealed, and the material questions raised, as stated in the brief of complainant’s counsel, are as follows: First. “Whether the title to the premises in controversy, first acquired and held by the administratrix June 6th, 1864, and the mortgage liens she subsequently placed thereon, as now held by the defendant Starkweather, are, as against the complainants, or any one of them, absolutely void by force of statutory law, or, if not absolutely void by force of statutory law, are they voidable, as against the defendant, in favor of the complainants, of any one of them, by force of the legal and equitable principles of notice.” Under this latter head, questions were discussed as to whether defendant had actual or constructive notice, and the effect thereof, or if he had neither, whether he was chargeable with such laches, as to deprive himself ■of any benefit arising from the law of notice. Second. “Are there any legal or equitable rules which prohibit the complainants, or any of them from now asserting by this bill their legal and equitable rights, ■as heirs at law,” either because of the statute of limitations, from lapse of time, from acquiescence, or of an equitable estoppel? So many of these questions as are deemed essential to a proper disposition of the case will be considered in their order. I. Was the administratrix’s sale of June 6th, 1864, '“absolutely void by force of statutory law?” It was insisted in the first place that the sale was void for the reason that the time in which the administratrix could sell the land for the payment of the debts of her husband had expired when the license was granted; ■consequently the license and all proceedings thereunder were absolutely null and void, within the decision in the case of Hoffman v. Beard, 32 Mich., 219. That there may be no misunderstanding the facts upon which this position is taken, we state the several steps taken and dates thereof. Administration was granted May 21st, 1855; commissioners on claims were appointed April 11th, 1859; their report was made October 3d; the petition for license to sell was made April 22d; the license to sell granted1 June 15th; the sale was made Nov. 1st; the report thereof made Nov. 26th, confirmed Nov. 28th, and administratrix’s deed executed December 15th, all in 1859. It will thus be seen that the petition for license to sell was máde within four years after the granting of letters of administration, and the sale was made within four years and six months after the granting of such letters. In delivering the opinion in Hoffman v. Beard this court had no intention of holding that under no circumstances could the probate court order a sale of the real estate of a deceased person for the payment of his debts, or that such a sale for such purpose could not be made after four years and six months from the granting of letters of administration. No such question was involved or decided in that case. Nor were the facts in that ease such as would justify the court in coming to and announcing such a conclusion. Some expression may be found in the reasoning in the opinion delivered iii that case, which taken alone might give color to such an idea. The reasoning in an opinion is not that of the court, but of the judge who prepares and delivers it. It may or may not be considered sound and unanswerable, and as such is the subject of criticism. The conclusion arrived at and announced upon the several questions discussed and essential to a proper disposition of the case, is that of the court, and in concurring in such conclusions it is not generally supposed or understood that everything contained or said in the opinion is thereby unqualifiedly and unquestionably adopted as the opin ion of the court. In the preparation of an opinion, the facts of the case are in mind. It is prepared with reference to such facts, and when considered in connection therewith, will generally be found satisfactory. When, however, an attempt is made to pick out particular parts or sentences, and apply them indiscriminately in other cases, nothing but confusion and disaster will be likely to follow. In other words, the opinion and decision of a court must be read and examined as a whole in the light of the facts upon which it was based. They are the foundation of the entire structure which cannot with safety be used without reference to them. That the general rule laid down and the conclusion reached in Hoffman v. Beard was correct, as the facts stood in that ease, we have as yet seen no reason to doubt, but that exceptions to such general rule exist, where, after the expiration of the time there stated, the probate court has jurisdiction to order a sale of the real estate of the deceased, for the payment of his debts, we have no doubt. Cases may frequently arise under our statutes, owing to delays arising from causes over which the administrator and probate court have no control, where the estate cannot be closed and settled within the usual and ordinary period. In all such cases the probate court does not lose its jurisdiction, when properly invoked, to order a sale of the real estate, and a sale made in accordance therewith will be valid and binding. Such has been the construction placed upon similar statutory provisions by the courts of other States. It is not necessary, nor is it best, to attempt to point out such exceptional cases, but the following sections of our statute and adjudged cases may be referred to as throwing additional light upon this subject. 2 Comp. Laws,, §§ 4435, 4468; Cooper v. Robinson, 2 Cush., 184; Hudson v. Hulbert, 15 Pick., 423; Lamson v. Schutt, 4 Allen, 359; Palmer v. Palmer, 13 Gray, 326. We have no doubt but that the probate court under the facts in this case had jurisdiction to order a sale of the property in question, and that the sale made thereunder was not for want of jurisdiction in that court rendered invalid. It is, however, farther claimed that the sale was “ absolutely void by force of statutory law” for the reason that the administratrix making the sale was indirectly interested in the purchase contrary to the statute (2 Comp. L., § 4562), which forbids the executor or administrator from being directly or indirectly interested in the purchase of the real estate, and declares all sales in violation of this provision to be void. The administratrix’s deed to Henry Compton was dated and executed December 15th, 1859, and properly recorded on the 30th day of April following, and it is not claimed that there is any thing appearing of record tending to show that the administratrix was either directly or indirectly interested in the purchase made by Compton, under which this deed was given. Speaking for myself, I am not prepared to hold, under such circumstances, that third parties acting in good faith could not acquire rights under such a conveyance, even although it might afterwards be shown by evidence, dehors the record, that the administratrix was indirectly and secretly interested. It is not necessary, however, to decide such a question in this case, as the evidence fails to show any agreement by which she was to have any interest whatever in the lands by her sold to Compton. It is true the evidence does show that Compton in making the purchase did not intend to hold the lands as absolute owner thereof, but that the sale was made to cut off certain false and fraudulent claims against the estate, and to protect the property from trespassers, and that Compton, the purchaser, was to hold the title until the children of the deceased became of age and then convey to them. In all this there is nothing even tending to show that the administratrix was in any way interested, within the meaning of this statute, so as to rénder the sale so made void. Henry Compton continued to hold the title under this sale during his lifetime, and after his death his heirs, upon repayment of the amount expended and paid out by him, conveyed the property June 6, 1864, to Elizabeth A. Larzelere, the children of Solomon Larzelere not then being of age. Neither does it appear that this conveyance was made for the purpose of defrauding the heirs of Solomon Larzelere. It was then understood that Mrs. Larzelere took and held the estate for their benefit, and that the conveyance was made to her, in her own right, so that she might mortgage the property, and thereby raise money to pay the Compton estate the amount Henry Compton had advanced for the purchase of this land from parties claiming title thereto under a certain mortgage foreclosure hereafter referred to. The sale made by the administratrix cannot therefore be held void upon the ground that she was either directly or indirectly interested therein within the meaning of our statute, as such was not the fact. It appears that in 1850 Theodore E. and Solomon B. Larzelere, then claiming to own this entire tract of land, consisting of some four hundred acres, mortgaged the same to Isaac N. Conklin. Default having been made in the payment of the sum secured thereby, the premises were advertised and sold Sept. 23, 1861, under the statute, and struck off to the mortgagee for the sum of one thousand eight hundred and twenty-seven dollars, and a deed was executed by the sheriff in accordance therewith, which was afterwards and on Oct. 4th, 1862, duly recorded. Upon the 31st day of October following Conklin conveyed the premises to Henry Compton in consideration of the sum of one thousand six hundred and fifty-six dollars and fifty-nine cents, as recited in the deed. The sheriff’s deed to Conklin is claimed to have been “ absolutely void by force of statutory law,” because, first, the entire premises consisting of distinct lots were sold in one parcel; and, second, that the mortgagee had instituted proceedings at law, which had not been discontinued, to recover the debt secured by the mortgage. This tract of land consisted of two adjoining pieces, three hundred acres or thereabouts being in what was known as French claim 690 and the balance in claim 691, and although so described in the mortgage, yet they were therein spoken of as one parcel of land, and the mortgage recited the fact that the property had been so treated in previous conveyances under which the mortgagors claimed title. The map introduced shows the property to be in one parcel, but the larger tract, or that part iii claim 690, to have been separated by a road running diagonally across the same, known as the Chicago road. This question must be disposed of by the condition of the property at the time the mortgage was given •and as therein described. As already stated, it was spoken of and treated in the mortgage as one tract or parcel, and the evidence shows that it was then “held, occupied and worked as one farm * * the whole four hundred acres.” Our ■statute provides that if the mortgaged premises consist of “ distinct farms, tracts or lots, they shall be sold separately, and no more farms, tracts or lots shall be sold than shall be necessary to satisfy the amount due,” etc. The word “distinct,” as here used, means separate or different, — not the same. It is equivalent to saying that if the mortgaged premises consist of “separate farms” or “different farms,” then they shall be sold separately. A farm might be susceptible of being subdivided according to the governmental survey into several distinct parcels or lots, or it might be divided by a highway, and yet its character as one farm remain the same. Neither highways nor sectional lines can cut and carve one farm into several so long as the owner occupies and treats it as a whole as one farm, and where he occupies it as a farm and mortgages it as one parcel, neither he nor his privies can complain if the mortgagee sells the entire property in one parcel. Third parties may have a right under certain circumstances to have the mortgaged premises, although mortgaged as a whole, sold in parcels, but this is for their protection. A farm may be so situate that any attempt to sell it in parcels, either according to sectional subdivisions or highways running through the same, would but deter parties contemplating a purchase of the same from bidding. But whether this would be so in a given case or not can make no difference so long as the owner treats and mortgages it as one farm, and if it is so in fact it may be sold as such'. Nor do we think the fact that Conklin had proven the claim secured by this mortgage before the commissioners was such a suit or proceeding at law as our statute contemplates. In my opinion the whole object and intent of that provision is to prevent the creditor pursuing a double remedy at the same time, thus putting the debtor to needless costs and expense. The statute, by the terms used, has reference to proceedings in a court of law, where a judgment may be rendered and an execution issued thereon against the property of the debtor. I think the bare fact that he presented the claim before the commissioners, and that it was allowed by them, would not render the sale subsequently made void. Such would seem to be a fair construction of this subdivision of our statute, taking the entire provision into consideration. The mortgages under which defendant Starkweather claims were all executed by Elizabeth Larzelere, after the conveyance of the premises to her by the heirs of Henry Compton in June, 1864. As the records after such conveyance showed a perfect title in the premises in Mrs. Larzelere, and did not disclose the fact that she really held them in trust for the benefit of the heirs of Solomon B. Larzelere, it remains to be ascertained and determined whether defendant Starkweather had such notice that he cannot be said to be a purchaser or encumbrancer in good faith entitled to protection as such. We have already determined that an examination of the record would have disclosed no defects that could in any way have affected his interests, so that whether he did or not make such examination, is a matter of no consequence. Besides the facts which an examination of the records would have disclosed — and with a knowledge of these facts he is chargeable whether he made an examination thereof or not, — and the knowledge he had that these premises had once been owned by Solomon B. Larzelere, — that Elizabeth A. Larzelere, his widow, had acted as administratrix, and afterwards held and appeared to own the premises under the conveyance from the heirs of Henry Compton, it is not claimed that Star1 weather had any actual notice beyond these facts of the condition of Mrs. Larzelere’s title. There is no satisfactory evidence, — if indeed there is any, — that Mr. Starkweather was at any time informed of the fact that either Henry Compton or Mrs. Larzelere had taken or held this title either in fraud of or for the benefit of the heirs of Solomon B. Larzelere. The only knowledge that it is claimed he had beyond this was knowledge upon the part of his attorney, not communicated in fact to him, and such general information as must have been supposed to be known in the neighborhood and which he had heard, or by proper inquiry and diligence could have ascertained. There is no doubt but that in June, 1864, Mr. Joslin, an attorney, had knowledge of the fact that the sale to Compton was for the benefit of the heirs of Solomon B. Larzelere, and that he advised the conveyance to be made by the heirs of Compton to Mrs. Larzelere to enable her to mortgage the property in order to raise money to pay the amount Henry Compton had advanced as already stated. The ground upon which Starkweather is sought to be charged with notice of the facts known to Joslin, is based upon the testimony of the defendant. He testified that he had before loaning Mrs. Larzelere any money made inquiries about her title to the premises, and that amongst others he had inquired of Mr. Joslin, “who had been one of his attorneys,” and was informed that her title was good. The first mortgage given by Mrs. Larzelere to defendant was in April, 1867; another was given in 1868, and a third in 1870, and each of these mortgages was drawn in the office of Mr. Joslin. In. what transactions or when Mr. Joslin, or the firm of which he was a member, had been the attorney of Mr. Stark-weather does not appear, nor does it appear that Mr. Joslin drafted either of the mortgages drawn in his office or took any active part in those transactions. The evidence merely shows that some three years after he obtained his information he was inquired of as to the condition of Mrs. Larzelere’s title. For what object the inquiry was made it does not appear he had any knowledge. Neither does it appear that he was or had been employed by Mr. Starkweather to investigate this title for him, or that he could in any proper sense of the term be considered .as the agent or attorney of Mr. Stark-weather for any such purpose. The burthen of proving notice, either actual or constructive, is upon the complainants, and we cannot add to the evidence by assumption for the purpose of finding what does not otherwise appear. There was nothing in the answers of Joslin or the others upon whom he called for information to cast suspicion upon Mrs. Larzelere’s title, or from which it could be said that the defendant in not extending his inquiries still farther was thereby willfully shutting his eyes to what he might have feared would appear upon farther investigation, or that he was acting in any way in bad faith. A party is not bound to notice or investigate mere neighborhood or general rumor, whether true or not. Butler v. Stevens, 26 Maine, 484. There are cases which go very far in extending the doctrine of laches in applying the rule of constructive notice. We think, however, the better and certainly the safer rule to be that a mere want of caution is not sufficient, — not that he had incautiously neglected to make inquiries, but that he had designedly abstained from making inquiry for .the very purpose of avoiding knowledge. In other words, that he acted in bad faith. It has been well said that such a purpose, when proved, would clearly show that lie had a suspicion of the truth, and a fraudulent determination not to learn it. Jones v. Smith, 1 Hare, 55. Under this view of the case it becomes unnecessary to discuss the other questions raised. The decree must be affirmed with costs. The other Justices concurred.

Marston, J. Defendant in error sought to recover m an action of assumpsit upon the following instrument: “Grand Rapids, Sept. 14, 1874. Messrs. Isaac Woodruff & Co., General agents of the Pharos Lightning Rod Company, Grand Rapids, Mich.— You will please send me galvanized lightning rods for my Rouse within sixty days, for which I will give you ■thirty-five cents per foot, due when work is completed. H. Weiden. Ten per cent, discount to be given on whole amount.” Plaintiff proved that under this order he had delivered 206 feet of lightning rod. Defendant claiming that this written instrument did mot constitute a complete binding contract between the parties, offered to prove the conversation between plaintiff’s agent and defendant -at the time this order was given; that defendant reserved the right to countermand the order at any time within the sixty days; that he ■did in fact within that time, and before any of the rod was delivered, actually countermand the order; and he farther offered to prove that at the time the order was given the number of feet of rod to be delivered was agreed upon. This evidence was all objected to and excluded, and plaintiff recovered judgment for the amount claimed. I. This written order did not constitute such a written contract between the parties as would exclude parol evidence, or prevent the defendant from showing any further agreement entered into between the parties at -the time the order was given, and not embraced therein. Richards v. Fuller, 87 Mich., 161; Phelps v. Whitaker, id., 72, and cases there cited. . II. This instrument was but a mere order. Wood-ruff was not bound by it in any way to deliver any rod. Until accepted by him it was not binding upon either party. Woodruff testified that he passed upon all orders taken by his agents; if he considered tlie parties good he delivered the orders, and that if he doubted the responsibility of the party who gave the order, he had the right to reject it. Under such circumstances, it' is preposterous to say that there was a valid binding contract between the parties before Woodruff had accepted the order, and in some way notified the defendant of that fact. Even independent of such testimony, before an actual acceptance and notice thereof, the defendant had the right to withdraw his order. It is similar to an order given a merchant for goods, which before acceptance the party would have a right to withdraw. 1 Parsons on Con. [5th ed.], 483. The judgment must be reversed with costs, and a new trial ordered. The other Justices concurred.

Campbell, C. J. This is a bill to set aside the claims of Dwight to a small parcel of land near Hersey, Osceola county, on the ground that having been patented by the United States to one Isaac Pettit, who conveyed them to complainant, defendant had procured a conveyance from another Isaac Pettit, who had no real interest in the land, and recorded it so as to cloud the title of record. The United States sale was made in 1857 and completed by patent in 1858 to Isaac Pettit, of Wellington, Canada. Complainant’s grantor is claimed to have lived in Wellington county in Canada, in 1857, and to have removed to Michigan and resided here since 1858. Defendant’s grantor who is claimed, but not proven to have lived in Wellington at one time, was heard of in 1871 by defendant as living in Simcoe, Canada, and defendant visited him and procured a quit claim from him for ten dollars — he not making any claim of title and professing no knowledge of any, but stating that a son of his had once come to Michigan with money to buy lands, though never having informed him of his purchase. He was not sworn and this is hearsay. • Complainant bought of Isaac Pettit¿ the Michigan resident, some months after the purchase made by defendant of the other Isaac, but had for several years had care of the land for purposes of paying taxes. The parcel bought by complainant was a small portion of the entire tract entered by Isaac Pettit. It lies upon Muskegon river directly opposite other lands of complainant, extending about half a mile on the river, although very narrow. Upon the testimony we cannot doubt that complainant’s grantor is the genuine Isaac Pettit, and that defendant’s grantor had no interest in the land. There was some dispute whether the land was worth as much as $100 when suit was brought, but considering its value to complainant as giving him a complete riparian ownership at an important point on the stream, we are satisfied its value exceeds that sum. This being so the jurisdiction is made out, and the right established to avoid the cloud on the title. There is claimed to be some hardship in decreeing a release by defendant when he claims to have been willing all times to do justice. We are inclined to think he purchased in the belief that he had found the true owner, but the circumstances were such as to give him very strong grounds of suspicion, to say the least. It appears that Blodgett had been looking after the taxes, and it was evident that defendant’s grantor did not claim to have paid them or taken any interest in the land, as he did not suppose he owned it. It is manifest Dwight did not in any way exert himself to ascertain who was the person in whose behalf Blodgett was acting, and from the relations of the parties it is probable he did not care to. He paid out on this particular lot — supposing it to average with the rest — something less than ten dollars, and at least a part of that was paid after he knew of complainant’s grantor’s claim. Instead of disclaiming he saw fit to answer and put complainant’s rights in issue, and he has contested the case diligently throughout and appealed it, and thereby largely increased the expenses of both parties. Had he disclaimed all this would have been avoided. We do not think we can regard his expressions of willingness to settle on terms which required a payment from complainant of what would have been a bonus — although a small one — for the release of a bad and unfounded title, as justifying him in failing to disclaim. It is unfortunate that such a litigation should have been created or prolonged, but complainant without a disclaimer had no means of getting the cloud removed from his title, which had been involved by the record of a deed which on the record would appear to have come from his grantor. This however innocently intended, had the legal effect of a constructive fraud, which if dishonest in fact would have resembled forgery. We think the decree should be affirmed with costs. The other Justices concurred.

Marston, J. Defendant in error brought an action of ejectment to recover possession of forty acres of land in the township of Ogden, Lenawee county. To maintain the action in the court below the plaintiff offered in evidence a certified copy, from the register’s office of Monroe county of the record of a deed from Robert Van Rensselaer to Joseph R. Stuyvesant, dated October 4, 1840, and acknowledged November 2d, 1840, at the city of Newark, Essex county, New Jersey, before Joseph C. Hornblower, Chief Justice of the Supreme Court of Judicature of the State of New Jersey. The ■clerk’s certificate annexed was made November 9th, 1840, at Newark, in said county, by John P. Jackson, clerk of the county of Essex and of the Superior Court of Common Pleas of said county, who certified to Judge Hornblower’s official character and signature, and “that the deed is executed according to the laws of New Jersey.” This deed purports to convey the lands in question, with others in Lenawee county, and the plaintiff claimed that it also.conveyed certain lands in Monroe county; that it was properly recorded therefore in that county, and the record thereof or a certified copy of the same from the records of Monroe county was admissible in this case to prove title to lands in Lenawee county. Defendant below denied that any part of the lands in this deed described were situate in Monroe county, and therefore it was not entitled to record in that county, and that even should a portion of the lands therein described be.situate in Monroe county, the record of the deed in that county was not admissible as evidence of the conveyance of that portion of the lands lying in Lenawee county. Other objections were made which will be noticed hereafter. The deed purported to convey “all those certain parcels and portions of land situate and being in the county of Lenawee and in the territory of Michigan, containing in the aggregate two thousand six hundred and eleven acres.” Then follows a particular description of the lands according to sections, townships and range. Among the lands thus described, the last was “ the west half and west half of northeast quarter of section thirty-three, township seven south, range seven east, containing four hundred acres.” At the date of the deed there was no territory of Michigan, nor was there any township seven south, of range seven east in Lenawee county, while there was a township of that number and range in Monroe county. We cannot agree with counsel for plaintiff in error in holding this description void for uncertainty. It is true that one or other of the descriptions is incorrect. If the township and range is to. govern, the lands are not in Lenawee county. And if only lands in Lenawee county were conveyed, then nothing passed by this last description, and the deed to this extent must be held of no effect. If, however, we reject the more general description, the county, if it can be called one, we still give effect to the entire instrument and hold it valid and effectual as to all the lands particularly described therein. We have no doubt but that in accordance with well settled rules, the more general description in this case must be rejected, as without this a perfect description of these and all the lands described in the deed remains. Ives v. Kimball, 1 Mich., 313; Boardman v. Lessees, 6 Pet., 345; Anderson v. Baughman, 7 Mich., 69; Slater v. Rogers, 36 Mich., 77. The deed therefore was properly recorded in Monroe county.- Was a certified copy of the record from that county admissible in evidence in this case ? The statute under which this question arises reads as follows: “All conveyances and other instruments authorized by law to be recorded, and which shall be acknowledged or proved as provided in this chapter, and if the same shall have been recorded, the record, or a transcript of the record, certified by the register in whose office the same may have been recorded, may be read in evidence in any court within this State without further proof thereof; ■but the effect of such evidence may be rebutted by other competent testimony.” 2 Comp. L., § 4233. The question raised does not involve the effect to be given the record in Monroe county as notice of the lands ■described therein, but lying in Lenawee county; that would be' a very different question and might lead to a different conclusion. Neither does this question in any way affect the validity of the deed itself as a conveyance of the land therein described. The deed is effectual whether recorded or not. If recording it in the county where the lands are situate was essential to pass the title to the lands therein described as between the parties, the case would be very different from what it now is. The statute declares that all conveyances when properly executed and recorded, the record, or a transcript thereof, properly certified to, “ may be read in evidence in any court within this State” without further proof thereof. There would seem to be no ambiguity in the language here used. And yet we are asked to incorporate, by construction, a clause into this section which would entirely change it and make it read, “ may be read in evidence in any court of the county where the lands lie within this State.” This could only be done by construing this section in connection with § 4225, and incorporating a part of the provisions of the latter into those of the former. It is not at all clear, however, that by so doing we would thereby carry out the evident intent of the Legislature. Had it been the intention to limit § 4233 in this manner, we cannot but think that it would not have been left to judicial construction to effect such object when the Legislature could in a much easier and clearer manner have accomplished it at the time. Besides, when we interline the words “ of the county where the lands lie,” the words following, “within this State,” are thereby rendered of no force, but without such interpolation they have a decided bearing, as showing an intention not to limit the admissibility of the record to the county in which the instrument has been recorded, but to extend it to any court in any portion of the State. Let us see how any other construction would operate in practice. We have a statute which authorizes the prosecution of suits for trespass upon lands, when the defendant is not an actual resident of the county in which such lands are situate, in any county where such defendant may be. § 5976. Should it become necessary in such case for the plaintiff to introduce record evidence of his title to the lands upon which the trespass had been committed, where the suit was prosecuted in some other county, he must necessarily fail if the position contended for by plaintiff in error is correct. Our statute (§ 5146) authorizes bills for the foreclosure or satisfaction of mortgages to be filed in the circuit court in chancery of the county where the mortgaged premises or any part thereof are situated. Must the complainant .in such case, where a question of record notice to subsequent purchasers or incumbrancers is not involved, introduce a certified copy of the record of his mortgage from the records of each county in which the mortgaged premises are situate in case he is so unfortunate as to be unable to produce the original instrument, and if in such a case he has omitted to record his mortgage in each county in which the lands lie, must he thereby lose his lien to that extent or be compelled to give secondary evidence of his mortgage as of a lost' instrument ? Or if a party having lands in several counties, claiming title thereto under the same conveyance, brings an action of trover to recover damages, or an action of replevin to recover possession of timber cut and carried away therefrom, in the absence of the original must a certified copy from the record in each county, from whence the timber was taken, be produced on the trial, or would the record from one county suffice? Very many other cases might be supposed similar to the above, but we do not consider it necessary to extend farther in this direction. In each and all these cases we think the record or a certified copy thereof from any county where the conveyance had been properly recorded, would be admissible, not only as to the lands situate in such county, but as to all others embraced in such conveyance, and situate within this State. Under a similar statute in Pennsylvania it was held in Leazure v. Hillegas, 7 S. & R., 313, under circumstances like the present case, that “the deed was legally recorded in. Huntington county because it contained a conveyance of land in that county, and being legally recorded, its whole contents became evidence in every part of the State.” This case was followed in Wheeler v. Winn, 53 Penn. St., 122. In M’Keen v. Delancy, 5 Cranch, 22, where the facts were very much like those in the present case, and where the statute provided “that the copies of all deeds, so enrolled, shall be allowed in all courts where produced, and are hereby declared and enacted to be as good evidence, and as valid and effectual in law as the original deeds themselves,” the court said: “The whole deed, then, is evidence by the letter of the act. The whole is a copy from the record. If the validity of the conveyance depended on its being recorded in the county where the land lies, then a deed might be good as to one tract and bad as to another. But the deed’is valid though not recorded; and the question is, whether the copy is evidence as to everything it contains. The execution of the deed is one entire thing, and is proved so as to admit the instrument to record. The copy, if true in part, is true in the whole, and if evidence in part, must under the act, and on the general principle that it is the copy of a record, be evidence in the whole.” The language of this section (§ 4233) is in my opinion plain and unambiguous, and I think we are not at liberty, therefore, to limit or change in any way that which the words used fairly denote. Leoni v. Taylor, 20 Mich., 155. A farther objection was made, that the record did not appear to be signed by the register. It was conceded that the statute did not in express terms require the register to sign the record, but such it was said was the universal custom, and that his signature was necessary to authenticate the record. While it may be highly proper and customary for the register to sign the record, yet we cannot say that the record of an instrument found upon the public records in his office is not admissible in evidence, because the register’s official signature. does not appear to have been attached thereto. A failure upon his part to perform the customary duty in this respect cannot render such record a nullity. If he has performed in all other respects his duties in recording the instrument, as pointed out by the statutes, it is sufficient. An instrument properly executed, acknowledged, and authorized to be recorded, appearing upon the records in his office, must be presumed properly recorded and admissible as such, even although not signed by the register. The counsel for plaintiff below offered in evidence a printed volume, the title page of which read as follows: “Revised statutes of the State of New Jersey: passed in 1874. Trenton. Printed by order of the Governor. 1874.” On the following page there was a note added stating that through accident several acts revised and presented to the Legislature had failed to pass. Hence no legal publication of any had been made, but as the acts approved go into effect January 1st, 1875, they are herein published for the benefit of the bar and public. Objection was made to the introduction of this volume because it did not purport to be published under the authority of the government of that State, as required by our statute (2 Comp. L., § 5935). This objection we think is not well taken. This was a printed copy and purported to be printed by order of the Governor of that State. It was therefore published by the authority of one of the coordinate departments of the government, and this we think is sufficient. The intent of our statute is to prevent mere private or unauthorized publications of the statutes of another State from being admitted in evidence; but the distinct authority for printing and publishing the laws need not appear in any case where they purport to be published under the authority of the government. When published under the authority and sanction of the governor of a State, we must accept them and cannot treat them as a mere private or unauthorized publication. This was the only objection made to the introduction of this volume and of the laws therein contained on the trial, and is the only one in reference to said laws we shall notice. The plaintiff on the trial also offered in evidence certain papers purporting to be a duly authenticated copy of the will of Frederick W. Walker of Morristown, New Jersey, and of the probate thereof in that State and also in Michigan, to the introduction of which a number of objections were made. It was claimed, first, that there was no copy of the probate of the will in New Jersey. The question as to what was necessary to give the pro bate court jurisdiction came up under this same will in Pope v. Cutler, 34 Mich., 152, and it was there held a copy of the foreign will and the probate thereof duly authenticated must be presented to the probate court in this State to give it jurisdiction. In that case there was no evidence that the paper allowed in Lenawee county was accompanied by any foreign probate or authentication to entitle it to credit in this State. In this case there appears by the certificate of the surrogate of Morris county, New Jersey, a copy of the last will and testament of Frederick W. Walker, and the proofs thereof, and the letters granted and issued thereon, as transcribed from the original record thereof in his office. The objection is that none of these nor all together constitute the probate of the will; that there should be another distinct separate judicial act or decree, as the judgment of the court establishing the will. Technical or unsubstantial objections should not be permitted to defeat such instruments, and unless we can find in the statutes of the State of New Jersey a clear and express provision requiring such judgment or decree in addition to what appears in this case, then it would be our duty to consider the evidence of the probate of the will in that State as sufficient. If the statutes of that State do not in express terms or by clear necessary implication require such separate order or decree, we should be careful not to extend their provisions by a construction which would be of no force in that State, and would conclusively exclude any will admitted there from probate here, and the practice adopted in that State should have great force here in a case involving the proper course of proceedings under- their statutes. The statutes of New Jersey require the surrogate of each county to record in books provided for that purpose all wills proved before him or the orphans’ court, together with the proofs thereof, all letters testamentary and of administration by him issued or granted, and all things concerning the same, and transcripts of such records are admissible in evidence in every court in the State, and when certified under the hand and seal of the surrogate have the same validity and effect as transcripts certified by the register of the prerogative court. The statute also prescribes the form of letters testamentary and of administration; then follows immediately thereafter this provision: “And the said probate of wills and letters of administration shall have the same validity and effect as probate of wills and letters of administration issued by the register of the prerogative office, in the name of the ordinary, with the seal of office affixed.” The statutes of New Jersey do not in express terms require any distinct order, judgment or decree establishing the will, and they seem to treat and consider the recording of the will, with the proof thereof and the letters issued thereon, as the probate of the same. All these provisions and requirements have been fully observed and complied with in this case. We are of opinion, therefore, that this will was duly proved and allowed according to the laws of the State of New Jersey. It is next objected that the papers presented to the probate court of Lenawee county were not duly authenticated. These papers were certified to by the surrogate of Morris county with the seal of his court annexed as being a correct transcript from the record in his office. There was also a certificate by the president judge of the orphans’ court of said county, under the seal of said orphans’ court, “that the foregoing exemplification of the last will and testament of Frederick W. Walker, deceased, is authenticated in due form and by the proper officer.” The specific objections are, that this record does not purport to be a record of the orphans’ court, or that there was any proceeding in that court, while the certificate that the authentication is in due form is by the president judge of that court, and that it does not appear to be attested by the clerk of the orphans’ court, but by the surrogate. The statute of New Jersey provides that the judges of the court of common pleas, in the several counties of the State, are constituted judges of a court of record to be called the “orphans’ court.” § 1. By the 4th section of the act, the surrogate of the county is made the clerk or register of this court. The 5th section gives this court full jurisdiction in all matters pertaining to wills. By the 16th section the surrogate takes proofs of wills granting administration, etc. The 17th section makes it his duty to record such wills and proofs, letters of administration, and all things concerning the same. And the 18th section authorizes him to issue letters of administration. Bevised Statutes of New Jersey, 1847, p. 205 et seq. Section 2 of an act relating to official seals provides that “ the seals of the surrogates of the respective counties shall be also the seals of the orphans’ courts of said counties respectively.” Id. p. 865. This brief abstract of the statutes of New Jersey shows clearly that these papers were authenticated “by the attestation of the clerk, and the seal of the court annexed, * * together with a certificate of the * * presiding magistrate * * that the said attestation is in due form” as required by the act of Congress. 2 Comp. L., p. 2251. As we discover no error in the record, the judgment must be affirmed with costs. The other Justices concurred. Graves, J. When a deed covers lands in different counties and is recorded in one only, does such recording inure to constitute a-record of the parcels situate beyond that county in such sense that a transcript certified by the register of the office containing the record will be evidence in regard to such foreign parcels within the provisions of Comp. L., § 4233? I agree with my brother Marston that it does. The register is as much bound to enter the parcels situated in other- counties as those in his own. The deeds are positively required to be entered at full length wherever recorded (§§ 4228, 4254); and no discretion is given to the register to pick out and omit parcels he may suppose to be in other counties. He has no power to judge, and may not break in upon the identity of the instrument by suppressing part of its contents. It forms a record in its entirety by authority of law in his office, and the other provision for certifying transcripts is in pari materia and contemplates that the whole of such authorized record may be evidence if regularly certified by the register in whose office the record belongs. The will referred to was certified hither by the New Jersey authorities as one which had been duly proved and allowed there according to her laws, and it not being shown that any separate and specific act of adjudication was necessary there, that the will was well proved, we cannot presume in order to contradict the authentication made by her officers and impeach the jurisdiction of the court of probate in Lenawee county, which allowed the will in this State, that her laws did actually require such separate and specific adjudication. In the absence of anything to even raise a contrary inference or suggest a probability of such a requirement, it is not unreasonable to give full faith and credit to the evidence afforded by the official testimonials in the authentication. I concur in holding that the judgment should be affirmed.

Campbell, C. J. Hart, as assignee of his associate and in his own right, under a contract made between defendants and himself and Oliver P. Richardson, sued for the failure of defendants to furnish lumber under a contract whereby they agreed, April 18, 1873, to deliver to Hart & Richardson all their black walnut lumber on cars at Grand Ledge, except a certain lot to be delivered at Eagle Station, and also all the cherry, white ash, and butternut lumber they had or might buy during that season. All except the walnut was to be piled.in a way set forth, and “loaded wherever party of the second part wish, reasonable notice being given.” The lumber was to be of certain specified qualities. Certain culls also were to be furnished and loaded. The declaration sets forth the assignment sufficiently. It was urged by defendants that such a contract was not assignable, inasmuch as the duty to pay for the lumber rested on both contractors. But we see no difficulty in an assignment of the right, which could in no way change the contractor’s liability jointly to pay. The terms of payment were fixed at a certain sum per thousand feet, “payments to be made from time to time as heretofore.” The declaration contained special counts and also the common counts. On the trial, for the first time, objection was made to the special counts as containing no cause of action; in not averring the precise terms of payment by usage; in averring no notice to load on the’cars; in not averring that defendants owned or purchased any lumber not delivered; and generally that there was no breach set forth. The declaration may have been defective on general demurrer, but it did aver positively that defendants had sold and delivered large quantities of the lumber to other parties, and it also avers a readiness at all times to comply with the contract. As no payment could be demanded without delivery or readiness to deliver, and as plaintiff had a right to all the lumber owned or purchased by defendants, we think that no further averment concerning payment was essential. A sale to third parties made performance impossible, and no plainer breach could be averred. The court below excluded all evidence under the special counts, which was error. Under the common counts plaintiffs claimed to recover for lumber thus sold as wrongfully converted, and sought to recover the price or value on that basis. The court rejected this evidence also as inconsistent with their claim under the special count. We know of no reason why a recovery could not be sought on either basis, or why both sets of counts should not in such a case stand together. It was held in Whitcomb v. Whitney, 24 Mich., 486, that under such a contract the title passed to the vendee when the property was completely set apart and identified. This would not excuse the contractor from making a further delivery by loading on the cars, which did not become necessary to pass the title, but was a separate service. There was then a cause of action against defendants for disabling themselves from performing, which may have been for selling lumber not so far set apart as to pass title to plaintiff, as well as for selling what had already been passed. The special count would lie for either or both. The common counts would lie for that converted. We think the court erred in both rulings. The judgment must be reversed with costs and a new trial granted. The other Justices concurred.

Graves, J. Robinson sued the testator of plaintiff in error jointly with one Freeman Lathrop, before a justice, but Lathrop was not served, and did not appear. The declaration was for a joint claim on contract against both defendants as partners. Anderson appeared and pleaded the general issue, and Eobinson recovered a joint judgment upon the joint demand against both defendants. Anderson took a general appeal, and while it was pending in the circuit court, died. His death was suggested of record, and the court allowed his executrix, the plaintiff in error, to assume defense of the action. A trial was then had, but the jury failed to agree, and were discharged. Thereupon and against objection by plaintiff in error, the court allowed Eobinson to discontinue as to Lathrop on his undertaking, in open court, that in ease he should recover, he would not take judgment against the sureties in the appeal bond, or bring suit against them. The case then proceeded against Mrs. Anderson as representative of one of the original joint defendants, and Eobinson recovered. The court based its action on Circuit Court Eule 71, which permits discontinuance in certain cases. No other authority is suggested. The ruling was erroneous. Eule 71 was not intended for appeal cases, and if it had been, it would not have authorized a discontinuance here. When an appeal is taken against a judgment on the merits in a suit founded on a joint obligation, the unity of the cause of action is supposed to be so far fixed by the original determination as to preclude a severance in the appellate court at the election of the plaintiff. The appeal contests the liability asserted in the court of original jurisdiction, and if a joint one, the appellee has no power to change it into an individual liability in the appellate court against the consent of the appellant. A contrary course would lead to strange and unjust results. Again, the rule in question was not intended to transform a purely joint obligation into a several one, even in cases commenced in the circuit court. The purpose of the rule was to promote justice, and allow a plaintiff to recover against one or more of the defendants, where the case might have been regularly brought against them originally, and not to authorize recovery against part of those subject to an exclusive joint liability. The cause of action alleged here was joint and not several, and the recovery before the justice was given therefor. The plaintiff was bound to establish a joint liability in the circuit court, or fail in his recovery. The discontinuance as against Lathrop worked a discontinuance as against both defendants. The judgment must be reversed with costs, and as • there can be no new trial, none is ordered. The other Justices concurred.

Per Curiam. In this case plaintiff in error sued in the circuit court for the county of Wayne to recover damages for the intoxication of her husband caused by the acts of defendants. She recovered precisely one hundred, dollars damages, and thereupon costs were awarded to defendants. She brings error. We have searched with some diligence to discover some statute which would take this case out of the rule which gives costs to defendants in cases where the amount recovered is such as if sued for would have come within the exclusive jurisdiction of a justice of the peace. Comp. L. § 7387. It was held in Strong v. Daniels, 3 Mich., 466; Inkster v. Carver, 16 Mich., 484, and People ex rel. Stortz v. Judge of Ingham, ante p. 243, that the defendant is to recover costs in such cases. The law of 1867, supposed to change the rule, is construed in Inkster v. Carver. The case is a hard one, and we cannot but think the Legislature would have exempted it from this rule if the matter had been brought to their attention. But we are bound to enforce the law as we' find it. The judgment must be affirmed with costs.

Cooley, J. The sole question on this record relates to the rights of defendant in error as legatee under the will of her husband Daniel J. Stewart. The will was dated February 23, 1874, and the following is a copy omitting the formal parts: “ First. I give and bequeath to my wife, Amy Stewart, of the said county of St. Clair and State of Michigan, my house I lately built on the west half of the east half of southwest quarter of section 27, in said county and State aforesaid, also all personal property and furniture, etc., to her sole use forever; also to have the use of all my moneys during her natural life, after all debts are paid against my estate. Second. After the death of my wife Amy Stewart, I give and bequeath to _my adopted daughter Emily C. Kennedy, wife of Daniel Kennedy, of the township of St. Clair, in said county, five hundred dollars out of any money that may be in possession of my wife at her death. Third. Residues of the money shall be divided share and share alike between my nephews, William Stewart, son of Andrew Stewart, of Richmond, Macomb county; also Culver Patterson, son of Doughty Patterson, and also Reuben Patterson, son of said D. Patterson; also Charles F. Mills, of Richmond, Macomb county, Michigan.” The question is made upon a certain mortgage which belonged to the testator. It is agreed on both sides that this mortgage is to be considered as money, and the defendant claims that she is entitled to have it passed over to her as such. The executor on the other hand insists that she is entitled to the interest only, and that he should retain the mortgage, collect the interest and pay it over to her. The circuit court sustained the claim of the widpw. The word “use” as employed in the will is ambiguous, and may mean the interest only, or it may imply the possession of the moneys and the putting them to the use of the legatee as she may have occasion. It is sometimes employed in the latter sense in instruments of this nature, and we are inclined to think it was used in that sense here. The legatee was to have the moneys for her use during her lifetime as she might have occasion; and the employment of the word “residue” to designate what might be left at her death, instead of using the word “principal” or any synonymous term, tends strongly to support this view. It seems to imply that the fund might not be kept intact, but that some of it might be used and only a residue left. See Proctor v. Robinson, 35 Mich., 284; Sutphen v. Ellis, id., 446. This record, however, calls for no opinion except as to the right of the legatee to the possession and management of the fund, and that we think her entitled to. Judgment affirmed with costs. The other Justices concurred.

Per Curiam. Suit upon a recognizance of special bail, by which the defendants undertook for the appearance of one Bettinger. The plaintiff obtained judgment against Bettinger, took out a fi. fa. and afterwards a ca. sa. and the only question arising upon the record is made upon the sufficiency of the sheriff’s return to the last named writ. . The statute (Comp. L., § 5763) provides that no action shall be brought against the special bail until a ca. sa. shall be issued etc., and returned by the sheriff “that the defendant could not be found within his county.” The return made by the sheriff is that “ I hereby certify and return that after diligent search and inquiry I am unable to find the within named defendant Jacob Bettinger within my bailiwick, and cannot have his body as I am within commanded.” This is fully equivalent to the statutory requirement, and is sufficient.

Danhof, J. The University of Michigan is 'an institution of higher education established' by ' the constitution and by law, having authority to grant baccalaureate degrees. Plaintiff, Regents ' of the University of Michigan, is the constitutionally-designated body granted the authority to generally supervise and control the university. Defendant, Labor Mediation Board, is a state administrative agency created by PA 1939, No 176, ás amended, ‘(MOLA § 423.3 [Stat Ann 1968 Rev § 17.454(3)]). Plaintiff employs academic and nonacademic personnel. Defendants, Washtenaw County Building and Construction Trades Council, AFL-CIO, and American Federation of State, County and Municipal Employees, AFL-CIO, are labor organizations who filed a petition with defendant Labor Media tion Board for certification as the exclusive bargaining representative for certain nonacademic employees of the university. Defendant, Labor Mediation Board, held a hearing on the petition and plaintiff objected to defendant board’s assuming jurisdiction of the matter on the basis that plaintiff was a constitutional body corporate, had exclusive control of the university and was, therefore, not subject to PA 1947, No 336, as amended by PA 1965, Nos 379 and 397. Defendant board ruled that plaintiff was a public employer under the act and, therefore, subject to its jurisdiction. Plaintiff thereafter filed a complaint seeking a declaratory judgment to the effect that the provisions of PA 1965, No 379 contravene the provisions of Const 1963, art 8, §§ 5 and 6. The trial court held that it did not, and that the plaintiff was subject to the provisions of the act. Plaintiff appeals. Plaintiff and defendant agree that the issue is whether PA 1947, No 336, as amended by PA 1965, No 379 is unconstitutional if it applies to the plaintiff. As stated by the trial court this is not a question of whether collective bargaining is good or bad, but rather, only a desire on the part of the plaintiff to proceed in a legal manner. PA 1965, No 379 granted to public employees certain benefits of collective bargaining and organization which they did not have before. In addition, it placed administrative duties upon the defendant labor mediation board. The act in question was passed pursuant to the provisions of Const 1963, art 4, § 48 which provides: “The legislature may enact laws providing for the resolution of disputes concerning public employees, except those in the state classified civil service.” Plaintiff claims, however, that as applied to it the act contravenes a portion of Const 1963, art 8, § 5 which says: “Each hoard shall have general supervision of its institution and the control and direction of all expenditures from the institution’s funds.” The employees involved in this action are nonacademic employees who have in fact organized under the provisions of PA 1947, No 336, as amended by PA 1965, Nos 379 and 397. .At the outset we must first determine whether the employees in question are “public employees” so as to be included within the provisions of the applicable statute, and in so doing we must determine whether the plaintiff is a “public employer.” Black’s Law Dictionary (4th ed) defines “public” as “pertaining to a state, nation, or whole community; proceeding from, relating to, or affecting the whole body of people or an entire community.” Also, “Belonging to the people at large; relating to or affecting the whole people of a state, nation or community; not limited or restricted to any particular class of the community. People v. Powell (1937), 280 Mich 699 (111 ALR 721).” In addition, Const 1963, art 8, § 5, provides: “The regents of the University of Michigan and their successors in office shall constitute a body corporate known as the Regents of the University of Michigan;” further, “The board of each institution [of which the University of Michigan is one] shall consist of eight members who shall hold office for terms of . eight years and who shall be elected as provided by law.” ■Thus,, the plaintiff derives its being from a provision of the basic law of this state* the constitution, which was adopted by the people of this state in 1963. The election laws further provide that the regents shall be elected at the general election which is held in the fall of every even-numbered year. A further indication that the plaintiff is a public institution is found in Const 1963, art 8, § 4, which provides, “The legislature shall appropriate moneys to maintain the University of Michigan,” and we recognize that the legislature does each year appropriate moneys to maintain the plaintiff. These moneys are tax moneys derived from general taxation on all of the people of this state, and the legislature is the only body that has the power to appropriate the public funds of this state. Further, the Supreme Court has recognized that the University is a state agency within the executive branch of .state government and that the regents thereof are state officers. See People for use of Regents of University of Michigan v. Brooks (1923), 224 Mich 45; Attorney General, ex rel Cook, v. Burhams (1942), 304 Mich 108. We conclude on the basis of the foregoing that the plaintiff is a public body corporate deriving its being from the people, and is supported by the people, and the regents, who are state officers, are elected by the people. Thus, the plaintiff is a public ' employer. Therefore, the employees in question are "'public employees within the provisions of Const 1963, art 4, § 48 and as defined in MCLA § 423.202 (Stat Ann 1968 Rev § 17.455[2]). . While recognizing that the plaintiff is a public (employer and the employees in question are public ? employees, we also recognize that this plaintiff, be- • cause of the provisions of Const 19.63, art 8, § 5,- is a unique public employer. Its powers, duties and responsibilities are derived from the constitution as distinguished from other public employers whose authority is derivative from enactments of the legislature. Thus, because of the grant of authority contained in Const 1963, art 8, § 6, giving the plaintiff general supervision of its institution and the control and direction of all expenditures from the institution’s funds, we must further examine the provisions of PA 1965, No 379 as they apply to this plaintiff. Over the years the Supreme Court has jealously guarded the authority granted to the plaintiff as it relates to educational matters and the expenditures of funds of' the University of Michigan. See Weinberg v. The Regents of University of Michigan (1893), 97 Mich 246; Sterling v. Regents of University of Michigan (1896), 110 Mich 369; People, ex rel. The Regents of the University v. The Auditor General (1868), 17 Mich 161. This Court also recognized this independence in Branum v. Board of Regents of the University of Michigan. (1966), 5 Mich App 134. But it is also clear that the plaintiff is subject to the general laws of the state. In Peters v. Michigan State College (1948), 320 Mich 243, the Supreme Court held that the defendant; whose powers are not unlike those of the plaintiff here, was subject to the workmen’s compensation laws of this state. There Justice Reid, writing for affirmance said on p 250: “We find that the workman’s compensation act is a valid constitutional exercise of the power of the legislature even when it makes necessary the expenditure of agricultural college funds- in the compensation of employees under the terms and within the provisions of the workman’s compensation act. “The act is approved as a piece of legislation aimed not at the;defendant alone, nor against any. of the activities of the defendant of a nature peculiar to the defendant. The act is of a broad scope addressed to the subject of the liability of employers in broad fields of employment. The workman’s compensation act does not undertake to change or disturb the educational activities of the defendant board.” In Branum, supra, this Court said: “The University of Michigan is an independent branch of the government in the State of Michigan, but it is not an island.” Thus, we must proceed to examine the applicable provisions of PA 1965, No 379 to ascertain if it does interfere with the “general supervision” of the plaintiff. The act first confers upon the employees of the plaintiff certain rights and privileges. These are the rights to join a labor organization, to engage in certain activities for the purpose of collective bargaining through representatives of their own choice, to have an election to ascertain the collective bargaining unit and the bargaining representatives and to have this election conducted by the defendant State Labor Mediation Board. All of the foregoing are rights given to the plaintiff’s employees; and in none of these activities, either by the employees, or in the administration of the act conducted by the defendant board, do we find any interference with the general supervision of the university. Therefore, those rights and privileges which are granted to the employees by the provisions of PA 1965, No 379 do not interfere with the constitutional grant of general supervision to the plaintiff. What then is the duty on the part of the plaintiff? Section 11 of the act being MCLA § 423.211 (Stat Ann 1968 Rev § 17.455[11]), and §10 of the act MOLA § 423.210 (Stat Ann 1968 Rev § 17.455[10]), require that the plaintiff bargain collectively with the representatives of the plaintiff’s employees at reasonable times and places relative to wages, hours, and other terms and conditions of employment. However, § 15 of the act, MCLA § 423.215 (Stat Ann 1968 Rev § 17.455[15]), specifically provides: “but such obligation does not compel either party to agree to a proposal or require the making of a concession.” Thus, then the obligation on the plaintiff is simply to bargain in good faith on the items mentioned in the statute. The provisions of this section do not, in our opinion, infringe upon the general supervision of the institution or in the control of its funds. We recognize the proposition that a State constitution is a limitation of authority and not a grant of authority, and consequently the provisions of Const 1963, art 4, § 48 do not confer any greater authority on the legislature than it may have had, but certainly the provisions of this section cannot be ignored. The framers of the constitution and the people who adopted it have made it absolutely clear that the legislature does have the authority to provide a method and a procedure to endeavor to settle disputes of public employees. Plaintiff in its argument admitted the power of the legislature to enact such laws in this regard concerning it, but states that the provisions of this act are too broad in scope and hence violate the constitutional grant of authority given to it. But this is pure speculation on the part of the plaintiff. At this juncture we need only decide, and we do so only decide that the nonacademic employees of the plaintiff are public employees and may organize under PA 1965, No 379, and that the plaintiff is a public employer and is obligated to bargain collectively with the plaintiff’s employees, or their duly elected representatives on wages, hours, and conditions of employment. If in the enforcement of the other provisions of this act a conflict is created with what the plaintiff deems to be its constitutional authority, then that will be time enough to deal with any problems that may arise. The act provides for court review, and if past performance is any indication, we are confident that the plaintiff will jealously guard its prerogatives. To conclude we decide (1) that the employees herein involved are public employees, (2) that the plaintiff is a public employer, (3) that insofar as it is- stated herein the provisions of PA 1965, No 379 apply to the defendant employees and to the plaintiff employer, ■ and (4) that PA 1965, No 379 is constitutional, being a valid exercise of the police power of the legislature. What we have stated herein applies' equally to the intervening plaintiff and its employees who are similar to the employees of the University of Michigan involved in this action. •. Affirmed as modified by this opinion; no costs, a public question being involved. All concurred. MOLA §§423.201-423.216 (Stat Ann 1968 Bev §§ 17.455 [1]-17.455 [16]).

Quinn, J. At the close of plaintiffs’ proofs in their action for false arrest, false imprisonment and malicious prosecution, the trial judge granted plaintiffs’ motion for directed verdict on the issue of liability. The jury returned a verdict for plaintiffs and judgment entered thereon. Defendants’ motion for new trial was denied and they appeal. Defendants Tucker and Markham are uniformed officers in the police department of the municipal defendant. April 23,1964, the officers were assigned to investigate the operation of a business out of a home without a license.' The home involved was the home of plaintiffs. When the uniformed officers called at the home for the investigatory purpose, Lawrence Ko Tomita was not there. Sadako N. Tomita, his wife, informed the officers that a business was conducted out of the home, and she permitted them to see it. The business was in the basement and consisted of Japanese foods and some sake, an alcoholic beverage. On the instruction of a superior officer, defendant Tucker purchased a ■bottle of sake from Mrs. Tomita. April 24, 1964, after conferring with the officers, the prosecuting attorney’s office authorized a warrant for both plaintiffs on a charge of selling alcoholic beverages, to wit: one bottle of sake, without a license as required by statute. Defendant Tucker signed a complaint for this offense and a municipal judge of East Lansing issued a warrant for the arrest of plaintiffs on this charge. Through their attorney, plaintiffs appeared voluntarily before the municipal judge, stood mute, posted bail and were released. On Lawrence K. Tomita’s motion at preliminary examination June 29, 1964, the charge against him was dismissed. Sadako N. Tomita was bound over to circuit court where her motion for dismissal was granted on the basis of entrapment. This action for false arrest, false imprisonment and malicious prosecution was instituted thereafter. At trial, defendants offered in evidence the deposition of Lawrence Ko Tomita. Objection to its admission was sustained but it is before this Court on a separate record. The deposition should have been admitted. Ruhala v. Roby (1967), 379 Mich 102. In that deposition, Mr. Tomita testified that he had a business in his home for which he had a Michigan sales tax license in his name. He testified he sold some sake and that he had no license to sell it. He further testified that in his absence, his wife ran the business. Under the provisions of CL 1948, § 436.1 et seq., as amended (Stat Ann 1957 Rev § 18.971 et seq., as amended), sale of alcoholic liquor is authorized if the seller is licensed. No person, his clerk or agent shall sell such products unless the provisions of the act are complied with, CL 1948, § 436.32 (Stat Ann 1957 Rev § 18.1003). CL 1948, § 436.50 (Stat Ann 1957 Rev § 18.1021) makes it a felony for a person to do an act for which a license is required without first obtaining a license. The complaint against plaintiffs and the warrant issued for their arrest were valid on their face. This being true, there could be no action for false arrest or false imprisonment. Tryon v. Pingree (1897), 112 Mich 338; Gooch v. Wachowiak (1958), 352 Mich 347. Instead of directing a verdict for plaintiffs on these issues, the trial court should have directed a verdict for defendants. Essential elements in an action for malicious prosecution include: (1) the fact of the alleged prosecution and that it has come to a legal termination in plaintiffs’ favor; (2) lack of probable cause on the defendants’ part to believe plaintiffs guilty of the offense charged when defendants initiated the prosecution; and (3) malice of the defendants. Modla v. Miller (1955), 344 Mich 21; Drobczyk v. Great Lakes Steel Corporation (1962), 367 Mich 318. Defendant officers in good faith fully and fairly stated all material facts within their knowledge to the prosecuting attorney. There is no evidence in this record to establish that the officers acted from malicious motives or knowingly swore to false facts in their complaint. The prosecutor authorized a warrant before defendant Tucker signed a complaint. Thus, probable cause also was estab listed and bars plaintiffs’ right to recover, Modla, supra. In addition, the criminal charge against Sadako N. Tomita was dismissed on the basis of entrapment. To invoke the defense of entrapment it must necessarily be assumed that the act charged as a public offense was committed. 61 ALR2d 677, People v. Murn (1922), 220 Mich 555. In entrapment situations, public policy precludes prosecution of the charge. People v. Mitchell (1941), 298 Mich 172. By his testimony on deposition and under the provisions of CL 1948, § 436.32, supra, Lawrence K. Tomita was in the same position as Sadako N. Tomita. The trial court should have charged as a matter of law that the officers had probable cause to prosecute plaintiffs. Absent the lack of probable cause, there is no evidence in this record to establish that the officers acted from malicious motives. At trial and here, plaintiffs have relied strongly on Donovan v. Guy (1956), 347 Mich 457. We find that reliance misplaced. In Donovan, plaintiff was arrested without a warrant on one charge and tried on another. The Supreme Court held the illegal arrest could not be justified on the basis of a subsequent charge and conviction for another offense. In the case at bar, plaintiffs were arrested on a warrant charging a specific offense which was never . changed. After verdict, defendants moved for judgment notwithstanding the verdict. It should have been granted. On appeal, defendants pray that this Court direct the trial court to enter judgment for defendants. Reversed, and remanded for entry of judgment in favor of defendants, who shall recover their costs. All concurred. MOLA §§ 436.1, 436.17, 436.32, 436.50 (Stat Ann. 1957 Rev §§ 18.971, 18.1003, 18.1021; 1969 Cum Supp § 18.988).

Per Curiam. Defendant was convicted by a jury of driving while under the influence of intoxicating liquor. On appeal defendant contends that the trial court erred by failing to instruct the jury that the offense of operating a vehicle while one’s ability is visibly impaired is a lesser included offense in driving while under the influence of intoxicating liquor. Absent a request for an instruction, this Court will not consider a claim of error based on the failure to instruct the jury in regard to a lesser, included offense. People v. Mihalko (1943), 306 Mich 356; People v. Bark (1930), 251 Mich 228; People v. Ivy (1968), 11 Mich App 427. In addition, the requesting party must object to the failure to give the instruction before the jury retires to consider the verdict. GCR 1963, 516.2; People v. Mallory (1966), 2 Mich App 359. The record contains neither a request for an instruction nor an objection by counsel to the failure to give an instruction. Accordingly, any error implicit in the trial court’s omission was not properly preserved for review. Affirmed. CLS 1961, § 257.625 (Stat Ann 1968 Rev § 9.2325). CLS 1961, § 257.625b as amended by PA 1966, No 243 (Stat Ann 1968 Rev § 9.2325[2]).

Per Curiam. Plaintiffs appeal from an order denying their motion to reinstate this case, which was dismissed for lack of progress March 7, 1966. The record discloses the case was properly placed on the no-progress docket, but the record fails to disclose that GCR 1963, 501.4 was complied with. At that time, plaintiffs’ attorney was located in Detroit and the case was in Oakland county. Notice of the general call was not given plaintiffs’ attorney by mail, telephone or telegram as required by rule 501.4, supra. The first notice of dismissal received by plaintiffs’ attorney was by letter from the clerk dated July 6, 1966. For some unexplained reason, a pretrial conference was scheduled for July 29, 1966. Counsel for both sides appeared and plaintiffs’ attorney acknowledged he would have to file a motion to reinstate, after he moved orally to reinstate the case. At this point, plaintiffs had a right to reinstatement because of lack of notice prior to dismissal. Sezor v. Procter & Gamble Soap Co. (1934), 267 Mich 128. Again for some reason not explained by the record, the motion for reinstatement was not filed until March 1, 1967. This motion was heard March 6, 1967, but the matter was adjourned without date to obtain the transcript of the pretrial conference held July 29, 1966. A copy of this transcript is in the file and it bears date of March 7, 1967 and consists of 1-1/2 pages. By substitution of attorney filed December 8,1967, plaintiffs’ present attorney replaced tbeir former attorney. April 10, 1968, plaintiffs’ present attorney filed the motion for reinstatement of this case the denial of which is the basis for appeal. Attached to defendant’s answer to this motion is an affidavit establishing prejudice to defendant if the case is reinstated. This affidavit is uncontroverted. There is no satisfactory explanation in this record for the delay from July 29, 1966 to April 10, 1968 in bringing the question of reinstatement before the trial court for final disposition. Under the circumstances, grant or denial of reinstatement was discretionary with the trial judge. We are not able to find an abuse of discretion in view of the - uncontroverted showing of prejudice to defendant if reinstatement is granted. Affirmed with costs to defendant.

Lesinski, C. J. Plaintiff, Boron Oil Company, on June 5, 1967, applied to the defendant, City of Southfield, for a building permit authorizing construction of a gasoline station on certain land located in Southfield. The city engineer of South-field orally informed plaintiff that certain corrections in the building plans were necessary before the permit could be issued. The plans were then corrected to comply with the building code, but Southfield neither issued the permit nor informed Boron in writing of the reasons for failure to issue the permit. At the time plaintiff applied for a permit, the land involved was zoned commercial and would have permitted construction of a gasoline station. Therefore, on June 19, 1967, plaintiff instituted this action in circuit court seeking mandamus to order the issuance of the building permit. That same evening, the City Council of Southfield purported to enact an amendment to its zoning ordinance to restrict the land involved to office use only. The amendment was enacted following a public hearing held by the City Council, but according to allegations of plaintiff which were uncontradicted by defendant, there was no public hearing before the Southfield Planning Commission. Pursuant to the mandamus action, the circuit court issued an order directing defendant Southfield to show cause why the writ of mandamus sought by plaintiff should not issue. Defendant filed answers to both the petition for the writ of mandamus and to the show cause order and moved for summary judgment, alleging failure of plaintiff to state a cause of action. A combined hearing was had on the show cause order and the motion for summary judgment, but no testimony was taken. At the conclusion of the hearing the court found plaintiff entitled to a writ of mandamus and ordered defend ant to forthwith, issue plaintiff a building .permit for the service station. Defendant city of Southfield appeals. Southfield contends the circuit court committed error in granting mandamus because the amendatory zoning ordinance passed on the date of institution of the instant action prohibited construction of a gasoline station on the land in question. In support, defendant cites Franchise Realty Interstate Corporation v. City of Detroit (1962), 368 Mich 276, where the Court denied mandamus after adopting the city of Detroit’s defense that its newly amended zoning ordinance prohibited issuance of the requested building permit. Plaintiff argues, and the circuit court held, that Franchise Realty is inapplicable because the purported amendment to the zoning ordinance was invalid, as it was enacted contrary to CL 1948, § 125-.584 (Stat Ann 1958 Rev § 5.2934). We agree. The transcript of the circuit court hearing contains an allegation by plaintiff that Southfield’s Planning Commission never held a public hearing regarding the amendatory ordinance. At that hearing defendant’s attorney was asked by the court whether a public hearing had been held before the Planning Commission, but the attorney was unable to refute plaintiff’s allegation. Furthermore, the court allowed defendant’s attorney three additional days after the • court hearing within which to further determine whether a public hearing before the Planning Commission had been held. The record contains no assertion by the city that such a hearing did occur. Therefore, there was no disputed issue of fact as to whether the public hearing before the Planning Commission was held. In Bingham v. City of Flint (1968), 14 Mich App 377, this Court considered the validity of an amenda tory zoning ordinance of tlie city of Flint. There, in a situation the reverse of that involved in the instant case, the Flint City Commission adopted an ordinance without itself holding a public hearing, although the Flint Planning Commission had conducted a public hearing. The Bingham Court held the amendatory ordinance invalid because the city commission, which was the legislative body of Flint, failed to hold a public hearing before it acted, as required under § 125.584. The Court stated that an amendment to an ordinance under § 125.584 must be adopted in the same manner as required for the adoption of an ordinance. The principles of Bingham and § 125.584, indicate that amendment of a zoning ordinance in a city having a population in excess of 25,000 requires: 1. That the legislative body shall not in the first instance determine the boundaries of districts nor impose regulations until after the receipt of the final report of a commission which the legislative body may appoint. 2. That the commission, if appointed by the legislative body, shall recommend the boundaries of districts and appropriate regulations to be enforced therein, shall make a tentative report, and shall hold public hearings thereon before submitting its final report. 3. That separate public hearings, both before the commission and before the legislative body, must be held before the amendment of an ordinance. Southfield, a city having a population of over 25,000, has a planning commission and thus is subject to the special restrictions of Bingham and CL 1948, § 125.584. In the instant case, since the amendatory ordinance was enacted without a prior public hearing before the city planning commi ssion, it is void. Section 125.584 and the principles of Bingham require that where the legislative body of a eity such as Southfield has created a planning commission, separate public hearings on an amendatory zoning ordinance must be held by the city’s planning commission and by its legislative body. Because the amendment is void, in the instant case as in Bingham, “the commercial zoning remained unaffected by the purported change in zoning”. Having voided the amendatory ordinance, the circuit court considered the question of whether the building permit should have been issued under the commercial zoning ordinance then in effect. At the circuit court hearing, the court asked counsel for defendant city: “In other words, being succinct and to the point, there is only one impediment to the issuance of this building permit and that is the fact that you have now, by way of amendment while all of this was pending, acquired a change in zoning that permits only office buildings in that area.” Counsel for defendant city replied: “The only present impediment now is zoning.” Were it not for this concession by defendant city, this Court would be required to remand this case for an evidentiary hearing to determine whether the underlying facts indicate compliance with the commercial zoning ordinance of defendant city. However, because counsel for defendant conceded that plaintiff’s corrected application for a building permit conformed with all Southfield ordinances other than the amendatory zoning ordinance, and because the amendatory zoning was void, there was no impediment to issuance of the building permit. Under Article XIX of the building code and zoning ordinances of the city of Southfield: “Whenever the buildings, land and uses thereof as set forth on the application are in conformity ■with the provisions' of this Ordinance and all other applicable codes and ordinances of the city of South-field, it shall be the duty of the Director of Building and Safety Engineering to issue a building permit within 10 days after the receipt of such application.” Based on the city’s concession that the corrected application for a permit conformed with all applicable Southfield codes and ordinances, it was Southfield’s duty under Article XIX to issue the permit within 10 days after receipt of the corrected application. Southfield, concededly having failed in its duty to issue a permit under the above quoted provision, could, in a proper case, be compelled to perform by issuance of a writ of mandamus. Defendant asserts on appeal that the circuit court erroneously based its issuance of mandamus upon city violation of another provision of Article XIX of the building code and zoning ordinances which provides: “In all cases when the Director of Building and Safety Engineering shall refuse to issue a building permit he shall state such refusal in writing with the cause and reasons for said refusal.” We, however, decline to reach the issue of whether mandamus will issue where the application does not conform with the city’s building code and ordinances, but no written reason for refusal is given within 10 days. Resolution of that issue is unnecessary because sufficient grounds for issuance of the writ of mandamus were clearly present under the previously cited sentence of Article XIX which requires the director to issue a permit within 10 days of receipt of an application in conformity with Southfield codes and ordinances. Defendant also contends that the circuit court erred in issuing the writ of mandamus because Boron was not a proper party to compel issuance of the building permit. Under GOB. 1963, 112.1, the burden of pleading lack of capacity for a party to sue is on the party alleging incapacity. Defendant in the instant case pled as an affirmative defense in its answer that: “Boron Oil Company, the petitioner, has no interest in the land described in Exhibit A attached to the petition and is, therefore, not a proper party.” Thus, the issue of plaintiff’s capacity was properly before the circuit court. Plaintiff, however, asserts that in defendant’s memorandum of fact and law in support of its answer to the order to show cause and during the circuit court hearing, defendant in effect conceded that plaintiff was the real party in interest. We disagree. Upon examination of the memorandum and the transcript of the hearing, we are not convinced that defendant conceded this issue. Indeed, when during plaintiff’s argument plaintiff introduced exhibit 3 in an attempt to prove ownership of the property in plaintiff, defendant objected, claiming the document irrelevant and immaterial. Moreover, although defendant failed to raise the issue of incapacity at the circuit court hearing, the transcript of the hearing indicates that defendant, after expressing its willingness to argue the issues, was told that the court was ready to dispose of the case and no further argument on either side would be helpful. Based upon defendant counsel’s pleading of incapacity, his objection to admission of evidence tending to prove capacity, and the circuit court’s refusal to allow defendant’s counsel to continue his argument, the circuit court’s determination as to capacity must be reversed. The defendant should be provided the opportunity to have a hearing to determine whether there is a genuine issue of fact regarding the capacity of plaintiff to institute a mandamus action against defendant. While Southfield also contends the writ of mandamus should not have issued because Southfield was denied a pretrial conference under GCR 1963, 301, this issue is moot. The circuit court under GCR 1963, 117.4, may treat a hearing on the summary judgment as a pretrial conference under Rule 301. Therefore, upon remand in the instant case, the circuit court may consider the hearing on defendant’s motion for summary judgment to constitute the pretrial conference, and is to grant a defendant hearing to determine whether defendant can demonstrate any genuine issue of fact as to capacity. Should defendant be unable to present any genuine factual issue as to incapacity, summary judgment may be granted plaintiff under GCR 1963, 117.3. If defendant can prove incapacity pursuant to motion under GCR 1963, 116, defendant may be granted an accelerated judgment. If a genuine factual issue exists regarding plaintiff’s capacity to sue, trial must be had on this issue. Although neither party raised the issue of the proper name by which a municipality is to be sued, we deem this issue to be of sufficient merit to warrant raising it on our own motion. CLS 1961, § 600.2051 (Stat Ann 1962 Rev § 27A.2501) and GCR 1963, 201.3(5) provide; “Actions to which this state or any governmental unit, including hut not limited to a public, municipal, quasi-municipal, or governmental corporation, unincorporated board, public body, or political subdivision is a party may be brought by or against such party in its own name, or in the official capacity of an officer authorized to sue or be sued in its behalf, except that an officer of the state or any such unit shall be sued in his official capacity for the purpose of enforcing the performance by him of an official duty. Whenever any officer sues or is sued in his official capacity, he may be described as a party by his official title and not by name, subject to the discretion of the court, upon its own motion or that of any party, to require his name to be added.” (Emphasis supplied.) In the instant case plaintiff sued defendant by the name “City of Southfield”, and sought to obtain a writ of mandamus requiring a building permit to issue. Under Article XIX of the building code and zoning ordinance of the City of Southfield, supra, it is the duty of the Southfield Director of Building and Safety Engineering to issue building permits. Thus, under GCR 1963, 201.3(5) and CLS 1961, § 600.2051 the proper defendant in this action is the Southfield Director of Building and Safety Engineering. Therefore, on remand, the circuit court is directed to add the Southfield Director of Building and Safety Engineering as a proper defendant. Reversed and remanded. All concurred. Exhibit 3 consisted of an exercised option to the land in question granted by Metropolitan Federal Savings and Loan Association to the Detroit Bank and Trust Company as trustee. The option did not name the beneficiary of Detroit Bank and Trust Company’s trusteeship, and no further evidence was presented to prove ownership of the property in Boron Oil Company.

Per Curiam. Defendant was convicted by Recorder’s Court jury of breaking and entering an occupied dwelling with intent to commit larceny and larceny in a building. On appeal, defendant objects to the trial court’s failure to give an instruction and he questions the sufficiency of the evidence. The people have moved to affirm'the conviction under OCR 1963, 817.5(3). In the absence of a request for an instruction or an objection to the failure of the trial court to give an instruction limiting the jury’s consideration of a reference to defendant’s possible criminal record, the trial court was not required to give such an instruction. People v. Anderson (1968), 13 Mich App 247. The trial court record contains ample evidence to support the jury’s verdict. Motion to affirm is granted. CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1965 Cum Supp § 28.305). MCLA § 750.360 (Stat Ann 1954 Rev §28.592).

Corkin, J. Plaintiff Lewis, as public administrator of Kent county, sold real estate owned by decedent Jones to plaintiffs, Beauregard and Barbara Stubblefield. Defendant Hook is the holder of a mortgage on the premises that was a matter of record at the time plaintiff Lewis qualified as administrator of the estate and at the time the premises were sold, but not at the time of decedent’s death. Following is a chronology of the events giving rise to this action: February 5,1962 Petition by public administrator filed October 1, 1960 Mortgage by Jones to Hook January 30, 1962 Jones died February 28, 1962 Mortgage recorded by Hook March 9, 1962 Public administrator appointed and qualified June 12,1963 Petition for license to sell real estate filed November 15, 1963 License to sell real estate is- April 30, 1964 Deed to Stubblefields May 25, 1964 Order confirming deed Final account in Jones estate December 18, 1964 Final account allowed March 11, 1965 Letter to plaintiffs, Beauregard and Barbara Stubble-field on foreclosure Plaintiff Lewis was advised on or about January 30, 1962, that decedent Jones had died leaving no known heirs and shortly thereafter was advised that Jones owned the premises in question. Sometime before February 5, 1962, plaintiff Lewis examined the records in the register of deeds office and ascertained that Jones owned the property and found no recorded and outstanding mortgage. Apparently, no subsequent title examination was made and the sale was consummated without benefit of an abstract of title. During the course of administration, defendant filed the mortgage note as a claim against the estate and it was allowed as a fifth-class claim, no mention being made that the note was secured by a real estate mortgage. As the estate proved to be insolvent, no payment was made on fifth-class claims. Publication on the mortgage foreclosure began May 26,1965, and the sheriff’s sale was held and deed issued September 8,1965. Oh September 7, 1965, plaintiffs filed suit to set aside the foreclosure proceedings and to have the mortgage declared void as to plaintiff Stubblefield. It is plaintiffs’ claim that defendant is not entitled to the protection of the recording act because, on Jones’ death, the property passed to the state by operation of law and thus title was perfected in the state before the recording of defendant’s mortgage. The plaintiffs cite no authority that would sustain this claim. In this case, defendant’s mortgage was a matter of record when plaintiff Lewis became qualified to act as administrator of the estate, when he petitioned for and obtained license to sell and when plaintiffs Stubblefield purchased the property. Thus, at all pertinent and appropriate times relating to all three plaintiffs, the mortgage was on record and a conveyance of the premises would be subject to it. Plaintiffs also claim that defendant is estopped from enforcing the mortgage because he filed a general claim and permitted, without objection, the sale of the property. Having found that defendant’s mortgage was effectively recorded at all pertinent times, it would follow that plaintiffs had constructive notice of the incumbrance. The Probate Code provides in part: “Subject to the right of homestead, to the widow’s right of dower when elected by her, and to all prior charges against the estate, a decedent’s or ward’s estate, both real and personal, is subject to the payment of his debts, but no debts except those which are secured by a lien upon the property of the decedent or ward shall be paid unless filed in the probate court and allowed by the court and secured claims not so proved shall be paid only lohen the probate court, upon hearing, shall determine that the property covered by such lien is worth more than the amount of the indebtedness so secured.” (Emphasis supplied.) CL 1948, § 708.1 (Stat Ann 1962 Rev § 27-.3178[411]). The plain import of the statutory language is that a secured creditor does not have to file a claim against an estate except as he may wish to protect himself against a deficiency in the security. Nor do we find a provision in the Probate Code requiring the mortgagee named in a recorded mortgage to inform the fiduciary or others of his lien. We find no merit in plaintiffs’ claim that defendant’s failure to assert his rights under the mortgage during administration prejudiced plaintiffs so that defendant is now estopped from forcelosure. There were no contacts between defendant and plaintiffs respecting the sale of the property nor does the record show that defendant knew of the impending sale. Add the fact that plaintiffs had constructive notice of the existence of the mortgage and we have a situation devoid of the elements of estoppel. The hard fact of this case is that real estate was sold without properly searching the record so that a mortgage that had been of record for 26 months before the execution of the deed of conveyance went unnoticed. The decision of the circuit court is affirmed. Costs to defendant. All concurred. MOLA § 565.25 (Stat Ann 1969 Cum Supp § 26.543).

J. H. Gillis, P. J. On August 12, 1956, plaintiff Timothy Kelly, then eight and one-half years of age, was a passenger in an automobile owned and operated by defendant. Plaintiff was injured when defendant’s car went out of control and overturned. Plaintiff sued to recover for tbe injuries sustained and now appeals from a judgment following a jury verdict of no cause of action. Plaintiff initially contends that the trial court erred in its instruction to the jury concerning -whether or not plaintiff was a guest passenger within the meaning of Michigan’s guest passenger statute. Plaintiff requested that the following instruction be given: “The law presumes that a child between the ages of 7 and 14 does not possess sufficient ability, intelligence or experience to become a ‘guest’ under the guest passenger act.” The trial court refused to give the requested instruction. The statement of law in plaintiff’s requested instruction was incorrect and the instruction as given was proper. Burhans v. Witbeck (1965), 375 Mich 253. Plaintiff’s allegation that the trial court’s charge to the jury was confusing because it incorporated language of a Supreme Court opinion is without merit. There is ample evidence to support the verdict and the trial court’s instructions as to the law applicable to the evidence presented were thorough and fair. Affirmed. Costs to appellee. All concurred. OLS 1961, § 257.401 (Stat Ann 1968 Rev § 9.2101).

McGregor, J. The two cases herein discussed concern the same facts, allegations, and defendants. The plaintiffs are two groups of people who unsuccessfully filed class actions in the lower court. Our decision disposes of "both their appeals. The lower court actions stemmed from drainage improvements petitioned for in 1957 and completed in late 1961. The sale of bonds to finance the’ drainage work was delayed by a lawsuit filed in 1960, in which some of the plaintiffs participated. See Landowners of Sexton-Kilfoil Drainage District v. Wayne County Drain Commissioner (1962), 367 Mich 150. After the Supreme Court determined that the drain proceedings were valid, the bond sale and work commenced. The order issued by the drainage board to the drain commissioner indicated that the defendant municipalities were to be assessed for part of the cost of the improvement. Apparently they were not, and the plaintiffs allege constructive fraud. Defendants filed motions for summary judgment in both actions which, after being granted by the lower court on the grounds of no cause of action, were appealed. The issue posed is whether the court correctly granted defendants’ motions for summary judgment. The thread of plaintiffs’ argument is that the failure to assess the defendant municipalities for the drainage improvement cost constituted fraud or constructive fraud, and thus they have an equitable claim for relief. They contend they had no notice of the fraud at the time of the original failure to assess, and thus their actions, filed on discovery of the fraud, were timely. Plaintiffs requested an equitable order by the court, ordering the municipalities to comply with the drainage board’s order to pay their share of the improvement cost. As a basis for their contentions, plaintiffs use various equitable principles embedded in legal tradition. Although the lower court seemed to acknowledge that plaintiffs did have an equitable claim for relief, it based its judgment of no cause of action on the defenses of res judicata and laches. Res judicata applies to these cases because the drain improvement proceedings were challenged in the Landowners Case, supra. Numerous allegations were raised unsuccessfully in that litigation, and the Supreme Court affirmed the court’s dismissal. Some of the plaintiffs participated in that action. All could have. Moreover, the allegations of fraud should have been raised in the previous litigation. The failure to raise those allegations at that time pre^ vents their efficacy here. “The plea of res judicata applies, * * ■* not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which joroper ly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” Gursten v. Kenney (1965), 375 Mich 330, 335. Plaintiffs argue that new evidence, their eventual discovery of the assessment scheme, makes their actions timely. This is sophistry. The exercise of due diligence, including a reading of and an adherence to the appropriate steps outlined in the drainage code, would have informed plaintiffs of how the drainage improvement’s costs were to be assessed. Every one affected by a drain is notified of the date and place of the determination board’s meeting. At the meeting, affected parties may appear and voice support for or opposition to the drain and improvements. CLS 1961, § 280.72 (Stat Ann 1959 Cum Supp § 11.1072). If the board of determination finds the drain or the proposed work necessary, the per cent of benefits are apportioned to the affected lands by the drain commissioner. CLS 1961, § 280-.151 (Stat Ann 1968 Eev § 11.1151). Notice is then given to all parties of a public meeting at which a review will be had of the apportionment of benefits. CLS 1956, § 280.154 as amended by PA 1957, No 61 (Stat Ann 1959 Cum Supp §11.1154). Any one aggrieved by the apportionment of benefits may, at the day of review, apply to the probate court for the appointment of a board of review. CLS 1961, § 280-.155 (Stat Ann 1968 Eev § 11.1155). The board of review hears all parties and can make such changes in the apportionment as they deem just and equitable. CLS 1961, §280.157 (Stat Ann 1968 Eev § 11.1157). If an interested party is not satisfied, he may, after the report of the board of review, or at various other times during the proceedings, have the proceedings reviewed by certiorari. CLS 1961, § 280.161 (Stat Ann 1968 Eev § 11.1161). All of these opportunities for review and protest are to he invoked prior to the expenditure of any funds for the drain. However, there must he an end to any proceedings, and the section of the drain code that provides for review by certiorari states in part: “If no certiorari be brought within the time herein prescribed, the drain shall be deemed to have been legally established, and the taxes thereof legally levied, and the legality of said drain and the taxes therefor shall not thereafter be questioned in any suit at law or equity.” CLS 1961, § 280.161 (Stat Ann 1968 B-ev § 11.1161). Plaintiffs did not attempt to review their apportionments by any of the statutory methods provided. However, at a later date, they attempted to do what the legislature and the courts prohibit, namely, review drain proceedings other than in the manner provided by the drain statutes. See also CLS 1961, § 280.265 (Stat Ann 1968 Rev § 11.1265). Laches also bars plaintiffs’ actions. Estoppel by laches is the failure to do something which should be done or to claim or enforce a right at a proper time. Black’s Law Dictionary (4th ed). Plaintiffs’ inaction in the pursuit of their statutory remedies effectively bars their dilatory actions here contesting the assessment of the drainage improvement cost. Affirmed. No costs, a public question being involved. All concurred.

Holbrook, J. This is an action involving the liability of the estate of Carl H. Raseman to the State of Michigan for the claimed unpaid balance of the cost of the maintenance of Robert D. Raseman, an insane person, committed to the Ypsilanti State Hospital. The parties have stipulated to the facts presented on appeal: On November 24, 1944, Robert D. Raseman, age 21, was adjudicated insane and committed to the Ypsilanti State Hospital by the Wayne County probate court acting upon a petition presented by Carl H. Raseman, Robert’s father. The order of commitment stated that Robert D. Raseman was to be a “full-pay patient” and that “the estate of said patient and Carl H. Raseman, father of said patient, be and are ordered to pay 100% of the cost of maintenance of said Robert D. Raseman.” The order of commitment was never modified or revoked by the probate court. Carl H. Raseman made periodic payments totaling' $4,144.17 on the hospital account, paying it in full through October, 1948. On September 11, 1964, the State of Michigan caused a citation to be issued out of. the Wayne county probate court, directing Carl H. Raseman to show cause relative to his failure to comply with the court order of 1944. Thereupon Mr. Raseman filed a petition to modify the support order in the probate court in November, 1964. The show-cause citation was not heard .due to Mr. Raseman’s death on December 10, 1964. A claim in the amount of $17,540.11 representing the unpaid balance of the cost of the maintenance of Robert D. Raseman while confined to Ypsilanti State Hospital covering a period of commitment from November 1, 1948, to December 10, 1964, was filed against the estate of Carl EL Raseman by the State of Michigan. The administrator of the estate objected to the claim and it was referred to a referee. On January 11, 1967, the referee issued an opinion and recommendation holding the claim valid. The Wayne county probate court entered an order on February 1, 1967, approving the claim. Appeal was made by the administrator of the estate to the circuit court of Wayne county. A written opinion was filed by that court on December 6, 1967, holding the reimbursement provision of PA 1923, No 151, unconstitutional. An order of judgment was filed on January 5,1968, wherein the order of the probate court was overruled and the claim of the State of Michigan filed in the estate of Carl EE. Raseman held for naught. Claim of appeal from the order of judgment of the Wayne county circuit court was filed by the State of Michigan on January 11, 1968. There are only 2 issues properly presented on appeal and they are dealt with in order. 1. Does the reimbursement provision of PA 1923, No 151, as amended before December 10, 1964, violate art 11, § 15 of the Michigan Constitution of 1908? The reimbursement provision in question as applicable in the instant case, PA 1963, No 52 (Stat Ann 1965 Cum Supp § 14.811) provides: “If the relatives or friends of such mentally diseased person shall so request, or if on investigation at the time of the order for care, custody and treatment or at any time subsequent thereto, it shall appear that such mentally diseased person has means of property sufficient for the payment of his care and maintenance, or if those persons legally liable under § 2 of chapter 1 of Act No 146 of the Public Acts of 1925, as amended, being § 401.2 of the Compiled Laws of 1948, or of this act for the care and maintenance of such mentally diseased person, have sufficient means for that purpose, the court shall order his admission as a full-pay patient, or partial-pay patient, to any hospital, home or institution for the care or treatment of the mentally ill, mentally handicapped or epileptic in this state, and shall specify the amount which the estate of such mentally diseased person, or those persons personally liable for the care and maintenance of such mentally diseased person shall pay for care and maintenance of such mentally diseased person in such state institution, and the amount so stated shall be subject to collection the same as any other moneys due the state are collected. The patient, husband, wife, father, mother, grandfather, grandmother and children of any age, being of sufficient ability, shall jointly and severally be liable for the care and maintenance of any patient. No divorce shall operate to relieve the spouse of a patient from this liability for such care and maintenance, unless the court shall specifically so order.” The stated issue asks whether the reimbursement provision violates art 11, § 15 of the Michigan Constitution of 1908, which reads: “Institutions for the benefit of those inhabitants who are deaf, dumb, blind, feeble-minded or insane shall always be fostered and supported.” It is plaintiff’s contention that there is no basis for the view that the named institutions are to be financed totally by the public through taxation. It argues that because there is no mandate requiring total public financial responsibility for the costs of the care and maintenance of persons committed to the named institutions, the reimbursement provision is consistent with the constitutional provision. Defendant asserts the reimbursement provision to be unconstitutional because it attempts to shift the burden of support from the public to the patient or family relatives. Two similar constitutional provisions, Ohio and Kansas have been interpreted in the following 2 cases: The State v. Kiesewetter (1882), 37 Ohio St 546 and Kaiser v. The State of Kansas (1909), 80 Kan 364 (102 P 454). In The State v. Kiesewetter, supra, p 549, it is stated : “2. It is also claimed that this construction of the statute brings it in conflict with section 1, article 7 of the constitution, which declares that ‘institutions for the benefit of the insane, blind, deaf and dumb, shall always be fostered and supported by the state; and be subject to such regulations as may be prescribed by the general assembly.’ “The anstver to this objection is that the provision of the constitution is not self executing, and that the mode in which such institutions are to be fostered and supported is left to the discretion of the general assembly. That discretion has been exercised in the passage of the statute now under consideration.” (Emphasis supplied.) In Kaiser v. The State of Kansas, supra, it was noted that the constitutional provision was copied from the Ohio constitution and dealt with the provision in the same manner. We do not read our constitutional provision as mandating the legislature to provide for the cost of maintaining institutionalized patients at the sole expense of the State in addition to fostering and supporting such institutions. Such a result as claimed by defendant could have been obtained by the framers of our constitution had that been their intent. We find the reimbursement provision to be consistent with the constitutional provision. 2. Does the reimbursement provision of PA 1923, No 151, as amended before December 10, 1964, violate the federal and state constitutions providing for equal protection of the law? Am 14, § 1 of the United States Constitution states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Art 2, § 1 of the Michigan Constitution of 1908 states: “All political power is inherent in the people. Government is instituted for their equal benefit, security and protection.” Art 1, § 2, Michigan Constitution 1963 states : “No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or he dis7 criminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.” Defendant asserts that the reimbursement provision results in double taxation. This claim is more specious than real. State institutions care for many who lack property, and for those whose support no other person is liable. This is a properly allocated burden to all taxpayers under the general tax whereby State institutions are supported. The fact that a taxpayer has contributed under the general taxing procedures his proportionate share does not act to relieve him of contributing amounts required by a special relationship. Also, the amounts required appear to he different in their character— while general taxes are traceable to the support and maintenance of the institution, the amounts required of those of a special relationship under the reimbursement provision, are directly attributable to services provided to a particular patient of the State institution. There is no class legislation here resulting in unconstitutional taxation. See 48 ALE 733, Annotation, “Constitutionality of statute imposing liability upon estate or relatives of insane person for his support in asylum”, cases therein cited and supplemental cases. The Wayne county circuit court in reversing the order of the probate court relied on the case of Department of Mental Hygiene v. Kirchner (1964), 60 Cal 2d 716, (36 Cal Rptr 488, 388 P2d 720). Therein the State of California brought an action to recover the costs of care, support and maintenance from the estate of a daughter whose mother was committed as a mentally ill person in a state hospital. The Welfare and Institutions Code, § 6650 of California provided that the spouse, parents or children of a mentally ill person or inebriate shall he liable for his care, support and maintenance in a state institution of which he is an inmate. The daughter’s estate against which the state was pro ceeding contended that the support statute in question violated constitutional equal protection of the law. The California Supreme Court held: “Recently, in Department of Mental Hygiene v. Hawley (1963), 59 Cal 2d 247 (28 Cal Rptr 718, 379 P2d 22), the department, relying upon this same § 6650, attempted to collect from a father for the cost of care, support and maintenance in a state hospital for the mentally ill or insane of his son who had been charged with crime, but before trial of the criminal issue (and obviously without adjudication of that issue) had been found by the court to be insane and committed to such state hospital. We held (pp 255-256 [6]) that ‘The enactment and administration of laws providing for sequestration and treatment of persons in appropriate state institution — subject of course, to the constitutional guaranties — who would endanger themselves or others if at large is a proper state function; being so, it follows that the expense of providing, operating and maintaining such institutions should (subject to reasonable exceptions against the inmate or his estate) be by the state’. (Italics added.) We further held that recovery could not constitutionally be had against the father of the committed patient. This holding is dispositive of the issue before us. Whether the commitment is incidental to an alleged violation of a penal statute, as in Hawley, or is essentially a civil commitment as in the instant case, the purposes of confinement and treatment or care in either case encompass the protection of society from the confined person, and his own protection and possible reclamation as a productive member of the body politic. Hence the costs of maintaining the state institution, including provision of adequate care for its inmates, cannot be arbitrarily charged to one class in the society; such assessment violates the equal protection clause.” On appeal to the Supreme Court of the United States (Department of Mental Hygiene of California v. Kirchner [1965], 380 US 194 [85 S Ct 871, 13 L Ed 2d 753]) the ease was remanded for determination as to whether the support statute in question was held unconstitutional by reason of the California equal protection clause or the federal equal protection clause. The California Supreme Court in 62 Cal 2d 586 (43 Cal Rptr 329, 400 P2d 321), found their decision to have been reached solely upon the California equal protection clause. Plaintiff contends that post-Kirehner California district court of appeal cases indicate that § 6650 of the'Welfare and Institutions Code of California is not unconstitutional in a broad sense per se, but that' it is unconstitutional only when the liability sought is imposed and levied on a person who otherwise is not liable for the support of the committed person. On close examination of the several post-Kirehner California decisions and the Kirehner decision itself, we find merit in this contention of plaintiff. The complete social welfare approach toward those committed to state institutions suggested by defendant’s interpretation of Kirehner, has not been carried to its obvious conclusion by California post-Kirchner cases. In any event, there is no requirement that Michigan accept Kirehner since that decision was by admission of the California Supreme Court reached under the laws of California. A very comprehensive article concerning the KircJmer decision appears in 39 NYUL Rev 858 (1964) entitled “Compulsory contribution to support of state mental patients held deprivation of equal protection.” We quote therefrom as follows: “Public mental health facilities represent one of the largest categories of state expenditures, and the amount devoted to their maintenance and expansion doubles every few years. Statutes in all 50 states and the District of Columbia render one or more private individuals liable for the cost of support and care of inmates of state hospitals. This liability occasionally rests solely on the estate of the patient, but more commonly extends to close relatives, as, for example, in § 6650 of the California Welfare and Institutions Code, which provides that ‘the husband, wife, father, mother or children of a mentally ill person * * * shall be liable for his care, support and maintenance in a state institution of which he is an inmate.’ In California, collections under this section have totalled over five and one-half million dollars annually — a sum which will be reduced to zero in the future by the effect of the recent decision in Department of Mental Hygiene v. Kichner. * * * “But rather than proceeding to consider the relation of the purpose to the classification — the equal protection question — the court found the purpose invalid: no law could impose private liability for support of mental patients in state institutions. * * “If the court’s conclusion that only the state as a whole may be charged with the support of inmates is unusual, the argument used to reach that conclusion seems even more so under close examination. The court’s contention that civil and criminal commitments are alike in nature and purpose presumes 'that the main purpose of a civil commitment is to protect the rest of society — a view of psychiatric medicine which now seems anachronistic. No longer, are the mentally ill locked up in houses of bedlam primarily to protect the rest of society from irksome interferences; the ‘principal purpose’ of hospitalization of the mentally ill, as was recognized long-ago by the California court, ‘is to care for the indigent insane, who in some cases may be successfully treated * * * .’ The primary beneficiary under modern psychiatric practice is the patient and-his family; society benefits only in a far more restricted sense — from the possibility that successful treatment will result in the inmate’s return as a productive citizen. * * * “Thus the validity of the reasoning used by the court to reach the conclusion that support of state inmates is exclusively a state function is seriously in doubt — and so, therefore, is the further conclusion that the legislature lacks power to place liability for such support on any class less than the whole body politic. Yet, while asserting that lack of power, the court also made an exception which creates an apparent inconsistency: the inmate himself, it appears, may be charged for the cost of his care. However in accord with common notions of justice this exception may be, if support of state inmates is not exclusively a state function, if there is to be an exception, then it should be explained why another attempted exception may not also be allowed. This unanswered question is the crux of the true equal protection issue in the case. * * * “Finally, if particular persons have a common-law or a strong moral duty to act in a way which would accomplish the purpose sought by the legislature, then it may be reasonable to impose a statutory duty identical with their common-law or moral duty. In this Instance also, the classifications may justifiably be said to bear a reasonable relation to the legislative purpose.” The Michigan contribution statute creates a class to bear the burden of contributing to the support of patients at state mental institutions made up of the patient, his spouse, parents, grandparents and children. “ ‘The question of classification is primarily for the legislature and is sufficient if it is practical and reasonable. It is not reviewable unless palpably arbitrary. Straus v. Elless Co. (1929), 245 Mich 558. Equal protection of the laws does not prevent a reasonable classification by legislative enactment and the ultimate decision as to the wisdom of such laws rests with the legislature. Little v. American State Bank of Dearborn (1933), 263 Mich 645.’” Tribbett v. Village of Marcellus (1940), 294 Mich 607, 614. We rule that the classification is a proper one and bears a reasonable relationship to the purpose of the contribution statute. This determination is founded upon three factors — causation, benefit and moral duty which we find to be relevant, sufficient and reasonable to satisfy the constitutional requirement. The Michigan contribution statute is constitutional. Plaintiff has asserted that the order of the probate court dated November 24, 1944, which was not appealed from is res judicata and therefore conclusive on this appeal. The doctrine of res judicata is not immutable. It reflects a policy of law which seeks to end litigation, but it is only a policy, not an absolute rule, and it need not be and has not been applied rigidly without regard to disparate factual situations. Just because the 1944 probate court order was not appealed from and the petition for modification was not filed until 1964 does not mean that unpaid arrearages are not subject to modification. Indeed, the fact that a petition for modification can be entertained at all establishes that the doctrine of res judicata does not apply — if the doctrine applied, no court could modify the 1944 order. The reason why it is subject to modification is the reason why it can be modified as to arrearages, because it operates in futuro as to facts that had not occurred when the order was entered. It is a general rule tba) res judicata applies only where there has been an adjudication on the merits. The 1944 probate court adjudication on the merits did not constitute an adjudication on the merits of the 1945 or later facts and, hence, did not operate in the nature of res judicata as to later facts which have never been the subject of adjudication so as to prevent modification of the 1944 order as to accrued and unpaid arrearages. We find further light in 34 CJ, Judgments, § 1313, p 905, where the writer states: “The estoppel of a judgment extends only to the facts in issue as they existed at the time the judgment was rendered, and does not prevent a reexamination of the same questions between the same parties where in the interval the facts have changed or new facts have occurred which may alter the legal rights or relations of the litigants.” Also, see, 30A Am Jur, Judgments, § 335, p 379; Lasasso v. Lasasso (1949), 1 NJ 324 (63 A2d 526); Milbourn v. Milbourn (1963), 86 Idaho 213 (384 P2d 476); Hurd v. Albert (1931), 214 Cal 15 (3 P2d 545, 76 ALR 1348); Klaber v. Lakenan (CA 8, 1933), 64 F2d 86 (90 ALR 783); In re Guardianship of Snowball (1909), 156 Cal 240 (104 P 444); and Bennett v. Fidelity Union Trust Company (1938), 123 NJ Eq 198 (196 A 375). We conclude that the 1944 order of the probate court is not conclusive or res judicata as to changed conditions occurring subsequent thereto. Reversed and remanded to the probate court of Wayne county for a hearing on the petition to modify the support order of Carl H. Raseman, now deceased, to determine the legal liability of defendant subsequent to 1944 according to the merits in the case. In re Linstead Estate (1954), 340 Mich 653. Since the liability of the estate can be redetermined on the basis of whether the deceased in his lifetime was of sufficient ability to pay the amounts which the State claims he was required by the probate court order to pay, it is unnecessary to decide whether the “100% of the cost” provision in that order complies with the statutory requirement that the order “specify the amount” which those liable shall pay. No costs, construction of a statute being involved. All concurred. CL 1948, § 330.21 as amended by PA 1963, No 52. Tlie Ohio Constitution (art 7, §1) provided: “Institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state; and be subject to such regulations as may be prescribed by the general assembly ” (Emphasis supplied.) The Constitution of Kansas (art 7, § 1) reads: “Institutions for the benefit of the insane, blind, and deaf and dumb, and such other benevolent institutions as the public good may require, shall be fostered and supported by the state, subject to such regulations as may be prescribed by laio." (Emphasis supplied.) Bank of America v. Department of Mental Hygiene (1966), 246 Cal App 2d 578 (54 Cal Rptr 899); In re Shaieb (1967), 250 Cal App 2d 553 (58 Cal Rptr 631); County of Alameda v. Kaiser (1965), 238 Cal App 2d 815 (48 Cal Rptr 343); In re Dudley (1966), 239 Cal App 2d 401 (48 Cal Rptr 790) ; County of Alameda v. Espinoza (1966), 243 Cal App 2d 534 (52 Cal Rptr 480); Department of Mental Hygiene v. O’Connor (1966), 246 Cal App 2d 24 (54 Cal Rptr 432); Department of Mental Hygiene v. Kolts (1966), 247 Cal App 2d 154 (55 Cal Rptr 437); Estate of Preston (1966), 243 Cal App 2d 803 (52 Cal Rptr 790) ; Department of Mental Hygiene v. Lucas (1966), 243 Cal App 2d 464 (52 Cal Rptr 552). See, also, People v. Detroit, Belle Isle & Windsor Ferry Co. (1915), 187 Mich 177.

Danhof, J. On September 6, 1966, Lillian Bond and Daniel Pusfeld commenced a class action under OCR 1963, 208.1(3) on behalf of a class composed of themselves and all other parents of school children attending the elementary and secondary schools of the defendant Ann Arbor school district. Plaintiffs alleged that the imposition upon them of fees charged for various school activities and the expenses incurred in the purchase of books and school supplies was a violation of Const 1963, art 8, § 2, in that free elementary and secondary education was thereby denied their children. Plaintiffs sought injunctive relief, a refund to the plaintiffs’ class of all sums collected from it by defendant after the commencement of the suit, and payment of a reasonable attorney fee from any money judgment rendered. The case was tried without a jury, and on May 9, 1968, the trial judge entered a judgment holding that the general fees and material tickets system as presently established by defendant school district were in violation of Const 1963, art 8, § 2, and enjoining the assessment and collection of these fees, but holding that no refund was required. Additionally, the trial court held that the fees as presently established for students participating in interscholastic athletics were unlawful, that no refund of the fees was prayed for and none was allowed, but that assessment of the fees as presently established was permanently enjoined. However, the trial court held that the purchase of textbooks and miscellaneous supplies and equipment under the present system did not violate Const 1963, art 8, § 2. From this judgment plaintiffs have appealed, asking that defendant be enjoined from requiring or requesting the purchase of any books and supplies, that the plaintiffs’ class be given a money judgment for the full amount of general fees and material ticket fees collected by defendant between September 6, 1966 and May 9, 1968, and that a reasonable attorney fee, together with costs, be awarded from the money judgment. Plaintiffs did not appeal that part of the trial court’s decision relative to interscholastic athletics fees, and defendant did not file a cross-appeal. Plaintiffs’ initial question “Does art 8, § 2, of the 1963 Constitution require the defendant school dis.trict to furnish free books and supplies to students in attendance at its public elementary and secondary schools?” raises a novel legal issue. Plaintiffs argue that the language in Const 1963, art 8, § 2, “The legislature shall maintain and support a system of free public elementary and secondary schools as defined by law,” is “strikingly different” from the language in Const 1908, art 11, § 9, “The legislature shall continue a system of primary schools, whereby every school district in the state shall provide for the education of its pupils without charge for tuition.!’ It is contended by plaintiffs that the word “free” in Const 1963, art .8, § 2, means “with out cost or charge” and, therefore, that a number of sections of the school code of 1955 relative to the furnishing of textbooks are unconstitutional. Their position is that under Const 1908, art 11, § 9, only tuition-free primary schools were required, whereas under Const 1963, art 8, § 2, the entire elementary and secondary school system must be free, including the textbooks and supplies used therein. However, plaintiffs’ counsel states that he made a careful review of the records and journals of the Constitutional Convention of 1961 and of every reported case on the issue of free textbooks, and yet he was unable to cite any authority supporting the aforestated position. The only relevant case he found was Segar v. Board of Education of the School District of the City of Rockford (1925), 317 Ill 418 (148 NE 289), which held valid a school board resolution requiring a refundable deposit by students for the use of free textbooks furnished by the defendant school district. The court stated: “Plaintiffs in error cite, in support of their contention that the resolution adopted by the board of education is void, section 1 of article 8 of the Constitution of this state. While they do not point out in what respect this section of the Constitution is transgressed, we assume it is their position that provision for a system of free schools is not made until textbooks are provided at public expense for the use of pupils attending the public schools. No authority is cited in support of such a contention, and we are of the opinion that none can be found. The authorities seem to be uniform that a board of education has no power to furnish textbooks to the pupils at public expense without specific authority so to do. Annotations, 17 ALR 299; 45 LRA NS 972. A system of schools, which permits all persons of school age residing in the district to attend classes and receive instruction in the subjects taught, without a tuition charge, provides free schools, and the fact that the parents of pupils financially able to do so are required to provide their children with textbooks, writing materials, and other supplies required for the personal use of such pupils does not change the character of the school.” Also, there is merit in the defendant’s position that to adopt such a far-reaching concept as complete and total subsidizing of pupils would certainly have required persuasion and received extended discussion in the Constitutional Convention of 1961. It is significant that there was almost no discussion of the provision at hand, and there were no comments suggesting the proposition contended for by these plaintiffs. In the “Address to the People,” the Constitutional Convention of 1961 explained its proposed changes and the reasons for such changes. The explanation of the constitutional language being construed in this case was: “This is a revision of § 9, art 11, of the present constitution which fixes responsibility on the legislature to provide ‘primary’ education. To conform to present practice and court interpretations, ‘primary’ is changed to ‘elementary and secondary’. The balance of the section is excluded because its restrictions as to finance and definitions as to basic qualifications needed to be eligible for state aid are better left to legislative determination.” (2 Official Record, Constitutional Convention 1961, p 3395.) Additionally, this Court construes a provision of the Constitution with reference to the state of the law or custom at the time of its adoption. See Walber v. Wayne Circuit Judge (1966), 2 Mich App 145, and citations therein. Applying that test here, at the time the Constitution of 1963 was adopted defendant had not qualified under the statute to furnish free textbooks. See footnote 1, supra. To give the word “free” its broadest possible meaning, as argued by plaintiffs, would result in rendering-unconstitutional substantial portions of the statutes of the State of Michigan and case law concerning education. It is unlikely that such an intent would escape all discussion on the convention floor. This Court agrees with the trial court that the silence of the convention is some evidence that it did not consider art 8, § 2, to be an expansion of the concept of free education and that it does not appear that the framers of the Constitution, without any discussion, would intend such a drastic change as claimed by plaintiffs. Therefore, we conclude that “free” in Const 1963, art 8, § 2, does not mean that textbooks and supplies must be provided students without charge. Concluding as we do that the word “free” in art 8, § 2, is not to be equated with the words “without cost or charge,” we affirm the trial court’s construction of the Constitution. In actions tried upon the facts without a jury, findings of fact are not set aside on appeal unless clearly erroneous, GCR 1963, 517.1. The record amply supports the able trial court’s finding that no qualified person in the Ann Arbor public school district is or has been denied the benefit of primary and secondary education through any actions of the officials of the defendant. Thus, the trial court’s determination that under the present. system where students are not denied ad mittance to school because of lack of ability to purchase textbooks and any other necessary items, defendant’s requirement that children of the plaintiffs’ class purchase their textbooks and miscellaneous supplies and equipment for attendance at and participation in the program of the elementary and secondary schools of the defendant school district did not conflict with the constitutional requirement of free education is not clearly erroneous, and therefore, it is affirmed. Plaintiffs also ask, “Does administrative inconvenience and cost to the defendant school district justify the retention by the defendant of fees involuntarily exacted from the plaintiff class in violation of their constitutional rights to free schools and due process of law?” Initially, we state that this was a proper class suit under G-CB 1963, 208.1 (3), and we do not agree with plaintiffs that the trial court held otherwise. Bather, the trial court said it was not such a class suit as would justify ordering a return of the unlawfully assessed fees. His opinion read in part: “To defendant’s credit it should be pointed out that certain exhibits indicate that defendant school district instituted a plan to phase out these student general fees. (Again, see plaintiff’s exhibit 2.) “Prom the evidence introduced at the trial, it is the opinion of the court that defendant school district certainly acted in good faith. In charging these fees it attempted to comply with the provisions of the law in ear-marking funds received from these fees to certain specified expenditures. Again, it should be pointed out that the court is of the opinion from the evidence presented in the case that no child was refused admittance or was ex-pélled from defendant schools for failure to pay these fees. “Plaintiff has requested that this court order defendant school district to reimburse all of the students or parents of students attending school in the Ann Arbor school system for payments made in 1966 for general fees. This court will not order the return of these fees. The present suit is not deemed to be of [sic] such a class suit that would justify such action. In addition, this would be almost impossible for defendant school district and the cost would be prohibitive and an unreasonable and unjust burden on defendant school district and all of the residents in defendant school district would suffer. The law must be just. The court finds that the defendant school district acted in good faith and many supplies were furnished according to the evidence which were not required to be furnished by defendant school district.” The goal of any court is to assure that justice is done. This is particularly true in class actions which, historically, were an invention of equity and had no application to actions at common law. In the instant action, the plaintiffs’ class received equitable relief by means of a permanent injunction against the further assessment and collection of unlawful fees. The remaining question is whether justice would be served under the facts of this case by requiring additionally the refund of certain fees already collected and disbursed. The trial court found that it would not. Plaintiffs assert that in 1966-1967 and in 1967-1968 respectively $83,655 and $57,207 were collected by defendant in general fees from the plaintiffs’ class, and that an accounting would be necessary to determine the precise amount of the materia] ticket charges. The record shows that the general fees for high school in 1966-1967 were $10 per year per pupil, payable $5 each semester, and that in 1967-1968 it was $7 per pupil for the entire year. The material tickets were $1 and the number used varied with the course and project undertaken. Thus, refunds, if ordered, would be a maximum of $17 per pupil, plus a varying amount for $1 material tickets. The student enrollment in defendant school district was in excess of 17,000 in 1966-1967 and in excess of 18,000 in 1967-1968. No additional representatives of the plaintiffs’ class intervened in this suit after publication of notice to members of the plaintiffs’ class. The fees collected for the years in question were expended for the education of the children in school at that time. The record discloses that the money actually collected is no longer available. Thus, we would not be justified in making the defendant refund all of the money in question, which of necessity would have to be taken from the current school budget. This would work a hardship on the pupils currently in school because they are entitled to have current funds expended for their education. Therefore, the trial court was not clearly in error in granting injunctive relief but refusing to order refunds of the fees. Affirmed; no costs, a public question being involved. All concurred. See §731 (MCLA §340.731 [Stat Aim 1968 Rev § 15.3731]); § 740 (MCLA § 340.740 [Stat Ann 1968 Rev § 15.3740]); §881 (MCLA § 340.881 [Stat Ann 1968 Rev § 15.3881]) ; § 884 (MCLA § 340.884 [Stat Ann 1968 Rev § 15.3884]). MCLA § 340.884 (Stat Ann 1968 Rev § 15.3884) requires a favorable vote of the school electors before a school board may furnish free textbooks. No such vote had been taken in the defendant seliool district before commencement of this aetion. 6 Cyclopedia of Federal Procedure (3d ed), 1966 Key, §23,01.

Pratt, J. Beginning in the June, 1958, issue of its magazine, the defendant publisher announced a photographic contest with various prizes to be awarded winners. The announcement contained “Official Contest Rules” which were set off in bold black lines from the other portions of the article listing and describing various prizes. Pertinent to the issues here is the first paragraph of the contest rules which reads as follows: “1. Anyone is eligible to enter this contest with the exception of employees of IT. S. Camera Publishing Corp. and their families. Entries will be accepted from anywhere in the xoorld, although IT. S. Camera Publishing Corp. will not assume any responsibility for postage or customs duties due on entries received. The sponsor will exercise all possible care for entries but cannot accept responsibility for loss or damage. Entries will he returned if sufficient first class return postage is enclosed. Model releases and original negatives must be available on request.” (Emphasis supplied.) Plaintiff, a resident of Windsor, Ontario, Canada, entered the contest, submitting a photograph and in December, 1958, was advised by letter that he had been awarded the second prize, a fully equipped and installed 18' x 36' swimming pool. That letter also contained the following language: “(These pools cannot be assigned or transferred to someone other than yourself without the express consent of the International Swimming Pool Corporation.) As soon as arrangements for the delivery and installation of your swimming pool have been completed, we will contact you.” Paced with the restrictions against assignment or transfer, the plaintiff who owned no home of his own, attempted a subterfuge involving the transfer of deeds with a homeowning friend who would eventually obtain the pool and pay the plaintiff $3,500. However, the pool supplier had no distributor in the area of plaintiff’s residence and during the ensuing delay, plaintiff’s arrangements with his friend became impractical. In the late summer, a representative of the pool supplier contacted the plaintiff but it was mutually agreed that installation in the fall of 1959 would he imprudent and that the pool would be installed in the spring of 1960. Before the spring of 1960, the pool supplier became insolvent and could not deliver the pool. The defendant publisher then refused delivery. Prom a judgment by the trial court in favor of the plaintiff in the amount of $5,437.50, the defendant-publisher appeals, and contends that the assignment or transfer restriction contained in its letter did not constitute a breach of contract by the defendant, that the agreement between the pool supplier and plaintiff to delay installation until the spring of 1960 excused defendant from performance, that plaintiff failed to sustain his burden as to the value of the pool and that plaintiff’s damages should be limited to the $3,500 amount of the abortive agreement with plaintiff’s friend. Defendant contends that the restriction against assignment or transfer of the pool was not a new provision or condition of the contract but on the contrary was a more explicit recitation of an implicit condition contained in the original contest announcement. Defendant bases this argument on that portion of the announcement which describes the swimming pool prize and includes the following: “How would you like to have one of these wonderful pools completely installed in your backyard? * * * A magnificent recreational swimming pool for any homeowner.” Thus, defendant asserts, since the pool was to be installed “in your own backyard,” it could obviously not be assigned or transferred and the subsequent restriction merely reiterated this condition in more definite terms. We cannot accept such a circuitous argument. The language of the “Official Contest Rules” is simple, clear and unequivocal, i.e., “Anyone is eligible * ' * * anywhere in the world * * * .” The official rules are set apart from the prize descriptions and the latter cannot in our view he considered as conditions of the offering. As is stated in 17 Am Jur 2d, Contracts § 263 p 668, the “plain meaning expressed in the contract cannot be varied or added to by such extrinsic matters.” The defendant had no legal right after the plaintiff accepted the defendant’s offer to enter the contest to impose a restriction on assignment and transfer not set forth in the contest rules. Mooney v. Daily News Company of Minneapolis (1911), 116 Minn 212 (133 NW 573); Hertz v. Montgomery Journal Publishing Co. (1913), 9 Ala App 178 (62 So 564). Accordingly, the plaintiff was justified in ignoring the restriction which the defendant attempted to impose. Defendant also contends that the agreement of plaintiff with the pool supplier, and the ensuing-delay, excuses defendant from any obligation under the contest contract. Defendant relies heavily on the rule enunciated in Scheible v. Klenk (1912), 171 Mich 1, where the Supreme Court.affirmed a trial court decree in favor of a general contractor on the ground that the owner had independently entered into an entirely different contract with the subcontractor. Additionally, it was found that delays in the completion of the contract were caused by the owner. Such is not the case here. The initial delay was caused by the lack of a distributor of the pool supplier in the area and the plaintiff, according to the record, urged installation from the time he was notified in December, 1958 to August, 1959. The delay agreed upon in August, 1959, by the pool supplier and plaintiff was prompted as much by weather hazards, both as to construction and as to use, as by any other reason. No different contract was entered into with the supplier. The record supports the trial judge’s conclusion that the delay was not caused by the plaintiff and that the defendant breached its contract by failing to deliver the swimming pool. With respect to the award of damages, we find no error in the reliance of the trial court on the competency of plaintiff’s expert as to the value of the awarded pool. Further, plaintiff was entitled to recover damages in an amount equal to the fair market value of the installed and equipped pool (Brodsky v. Allen Hayosh Industries, Inc. [1965], 1 Mich App 591; Gongola v. Yaksich [1966], 3 Mich App 676) and his fruitless agreement with his friend does not allow a variation of that rule under the circumstances of this case. The record discloses that the plaintiff agreed to allow his friend to have the pool for only $3,500, but this fact alone would not justify our finding as a matter of law that $3,500 was the true market value of the pool. The price agreed upon by the plaintiff and his friend, in light of their personal relationship, may have been a bargain price. If defendant wanted to show that the market value of the pool was less than the replacement value, the defendant should have offered testimony or proof establishing that fact. Since it failed to do so, it cannot object that the trial judge adopted the only record evidence as to the value of the pool. The decision of the trial court is affirmed with costs to appellee. All concurred.

V. J. Brennan, J. Plaintiff taxpayer appeals from an order dismissing its suit with prejudice. On September 1,1967, plaintiff commenced an action against defendants to recover certain sums paid as ad valorem taxes for the years 1965, 1966 and 1967. Plaintiff contended that the tax millage in excess of the 15 mill limitation imposed by article 9, § 6 of the Michigan Constitution of 1963 was illegal as it had not received the approval of the electorate. No protest was filed by plaintiff at the time the 1965 and 1966 taxes were paid as required by MCLA §211.53 (Stat Ann 1960 Rev-§7.97). As a result plaintiff cannot recover the excess taxes paid in those years. Haggerty v. City of Dearborn (1952), 332 Mich 304. Although MCLA § 211.53a (Stat Ann 1960 Rev § 7.97) permits recovery of excess taxes notwithstanding the failure to register a protest, it does so only if the portion exceeding the lawful amount is paid either as the result of a mutual mistake of fact or a clerical error. The failure to obtain the voters’ approval for the millage in excess of the constitutional limitation cannot be characterized as a mistake' of fact, and therefore plaintiff is not entitled to relief under this statute. Plaintiff is also precluded from recovering the 1967 taxes as the protest which was entered with that payment does not comply with the requirements of MCLA § 211.53. This section of the general property tax law establishes the prerequisites for recovery of invalid property taxes except where the payment is based on a mistake of fact or is made under duress. General Discount Corp. v. City of Detroit (1943), 306 Mich 458. It provides in part: “He may pay any tax or special assessment, whether levied on personal or real property, under protest, to the treasurer, specifying at the time, in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may, within 30 days and not afterwards, sue the township for the amount paid, and recover, if the tax or special assessment is shown to be illegal for the reason shown in such protest * * * .” Recovery is permitted under the statute only if it is judicially determined that the tax is invalid for the reason specified in the protest. Peninsula Iron Company v. Township of Crystal Falls (1886), 60 Mich 79; Aurora Iron Mining Co. v. City of Ironwood (1899), 119 Mich 325; Hudson Motor Car Co. v. City of Detroit (1937), 282 Mich 69; Paul v. City of Detroit (1947), 318 Mich 545. The protest in question consists of the following words appearing on the taxpayer’s check, “Paid under protest due to illegal millage.” An unsupported statement that a millage tax is illegal does not satisfy the requirement that the protesting taxpayer specify the underlying reasons for the asserted illegality of the tax. If “millage” is taken to mean the tax itself, the protest merely informs the taxing authority that the taxpayer deems the tax to be illegal. If the term refers to the standard by which the tax is computed, the protest is nevertheless insufficient as the illegality of a tax standard might be attributed to any number of reasons or theories. See Peninsula Iron Co. v. Crystal Falls, supra. Furthermore, the check served as payment for several other taxes which were not disputed. Plaintiff’s protest thus failed to specify the tax to which the claim of illegality was directed. The order of dismissal is affirmed. All concurred.

Lesinski, C. J. Plaintiff s-purchasers instituted this action to compel defendants-sellers to specifically perform a purchase agreement with respect to certain land located in Oakland county, Michigan. ■Originally the case was assigned to circuit judge James S. Thorburn. Immediately prior to trial, on December 23,1966, the parties agreed to a stipulated settlement which was read into the record. In accordance with this stipulation, Judge Thorburn issued an order requiring defendants to convey the parcel and indicating that closing was to occur on or before January 30, 1967. While the order specified no means of enforcement, the court noted that it would retain jurisdiction until all provisions of the order were fulfilled. On January- 3, 1967, the case was reassigned to circuit judge Clark J. Adams pursuant to Buie 5 of the Oakland Circuit Court Buies providing for the balancing of court dockets at the beginning of each calendar year. After the reassignment, defendants moved for entry of a judgment dismissing the cause because the real estate closing did not occur on or before January 30,1967, as required by Judge Thor-burn’s order. Plaintiffs answered that defendants failed to comply and also petitioned for time to qualify for a mortgage and for reconsideration of Judge Thorburn’s order. During a hearing held February 27, 1967, Judge Adams stated that Judge Thorburn’s order would be set aside and the matter scheduled for immediate trial. However, on June 26, 1967, Judge Adams reconsidered and refused to sign an order to set aside the order of Judge Thor-burn. Defendants concede that the order was never set aside. Instead, following the trial, Judge Adams concluded, consistent with Judge Thorburn’s order, that pursuant to the purchase agreement between the parties, defendants were required to execute a deed to plaintiffs. However, unlike Judge Thor-burn’s order, Judge Adams’ judgment provided that ■should defendants fail to execute the deed, plaintiffs upon payment to the court could record a certified copy of the judgment which copy would operate as a conveyance of the land. . ■ Defendants appeal Judge Adams’ decision contending the judgment should be reversed and the matter remanded to Judge Thorburn for final disposition. In connection with this contention, defendants allege that Judge Adams acted without authority in retrying the cause and in improperly disregarding Judge Thorburn’s order. We disagree and affirm the judgment and order of Judge Adams. In the instant case Judge Thorburn’s order required that defendants convey the described parcel on or before January 30, 1967. Upon failure of the parties to comply with this order, further disposition of the cause was essential. Since the case had been reassigned under Oakland Circuit Court Rule 5, it was incumbent upon Judge Adams, under Rule 5, to effectuate final disposition. Defendants contend that disposition by Judge Adams would be improper as contrary to GfOR 1963, 529.2 which provides: “No judgment or order shall be set aside or vacated, and no proceeding under a judgment or order shall be stayed by any circuit judge except the one who made the judgment or order unless he is absent or unable to act. If the circuit judge who made the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be made by any of the other judges of the circuit or any judge assigned to the circuit.” .Upon review of the particular facts involved in the instant case, however, we conclude that no violation of rule 529.2 occurred. Examination of Judge Thor-burn’s. order convinces this Court that the order failed to specify any consequences should either party fail to comply with the order. Instead, that order provided that the court retained jurisdiction until all provisions of the order were fulfilled. Therefore, when the case was transferred to Judge Adams, he had jurisdiction to issue an additional order or a judgment consistent with the provisions of the order of Judge Thorhurn that would compel fulfillment of that order. Upon examination we find that the practical effect of Judge Adams’ judgment was merely to enforce Judge Thorburn’s order to convey. The judgment was to effectuate a conveyance of the land in the event that the defendants failed to perform. Therefore, the judgment of Judge Adams did not have the effect of setting aside the order of Judge Thorhurn contrary to GrCR 1963, 529.2, and it was valid. Arguably Judge Adams in disposing of the cause may not have had authority to set aside or disregard Judge Thorburn’s order. Similarly, Judge Adams arguably may not have had the authority to retry the entire matter. However, it was essential for proper enforcement of Judge Thorburn’s order that Judge Adams receive testimony both to establish the reason for failure of the parties to voluntarily perform according to Judge Thorburn’s order and to assist Judge Adams in ascertaining the proper remedy. In any event, any error of Judge Adams in disregarding Judge Thorburn’s order or in retrying the entire matter did not affect the substantial rights of the defendants as the resulting judgment was completely consistent with the prior order of Judge Thorburn. Under GrCR 1963, 529.1: “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding shall construe these rules to secure the just, speedy, and inexpensive determination of every action so as to avoid the consequences of any error or defect in the proceedings which does not affect the substantial rights of the parties.” As the defendants were not denied substantial justice by the “retrial” nor by the judgment enforcing Judge Thorburn’s order, the judgment must be affirmed. Affirmed. Costs to plaintiffs. All concurred.

Fitzgerald, P. J. The defendant was charged with driving while under the influence of intoxicating liquor. MCLA § 257.625 (Stat Ann 1968 Rev § 9.2325). His motion to dismiss the charge was denied by the recorder’s court, which brought about this interlocutory appeal by leave granted. He was found in his automobile by a "Wayne State University campus policeman while attempting to extract the automobile from the lawn in front of Joy dormitory on the campus, which necessitated that he climb a snowy incline down which he had previously slid. After submitting to and failing to pass a breathalyzer test, he was arrested and charged. His companion testified that defendant was sober when the automobile became stuck, but that he and defandant repaired to a nearby tavern to await the coming of a tow truck during which respite defendant consumed several drinks. Upon returning to the scene, defendant took the wheel and he was futilely attempting to climb the incline when the policeman arrived. He observed tire tracks in the snow leading from the street to defendant’s car. Defendant’s contention on appeal is that the drunk driving statute does not apply to those who drive on property which is not open to vehicular traffic by the general public. The relevant language of MCLA § 257.625 provides that the drunken driver is not “* * * to drive any vehicle upon any highway or any other place open to the general public, including any area designated for the parking of motor vehicles, within this state.” (Emphasis supplied.) It is the opinion of this Court that the conduct of the defendant will come within the purview of the statute if it is proven that he was driving while drunk. The grounds of the university are public by reason of their being a part of a state institution, MCLA § 390.641 (Stat Ann 1968 Eev § 15.1350 [1]), and would be such grounds which are “open to the general public”. Defendant’s attempt to insert the words “travel by” following the words “open to”, citing People v. Wigle (1957), 350 Mich 692, does not convince us that such an insertion would express what we discern the actual intent of the legislature to be, namely, to prevent drunk driving in those situations where the automobile is not being operated on a public highway, but is being operated on any “place open to the general public.” The Wigle Court construed the negligent homicide statute to apply only to defendants who operated their vehicles on the public highway. In elaborating, the Court noted that the legislature had not extended the negligent homicide statute to cover private parking lots (where Wigle had been operating his vehicle), although the legislature had changed the motor vehicle code in other places so that the statute required an operator of a vehicle involved in an accident resulting in injury and death to stop at the scene, and “prohibited the operation of a motor vehicle by an intoxicated person * * * upon private property open to travel by the general public.” (Emphasis supplied.) It is clear that the inclusion of the emphasized words, so seized upon by defendant here, were merely dictum to the Wigle decision which was concerned with a statute not before this Court, and were additionally made irrelevant to this case by the use of the dissimilar words “private property.” The Wigle ease does not change our opinion of the intent of the legislature in cases such as the present one. It is not necessary that an area be “open to travel” before an encroaching drunk driver can be arrested for driving on it. Since we may reason that it is the intention of the legislature to protect the general public from operators of motor vehicles who are under the influence of alcohol, it is logical to apply the statute to drinking drivers who are attempting to drive their vehicles in areas open to the general public which are not normally used by sober drivers for normal travel. The possibility of injury to the public does not abate, but instead may well be increased when a drinking driver is operating his vehicle on the public sidewalk, in a public park, or on a public lawn. This is obviously due to the fact that the public cannot be expected to be as aware of the presence of an impaired driver and his automobile which are proceeding in areas not normally open to vehicular traffic as they might be if they were in an area where automobiles are expected to be present, The law here stated is basic: Drunk drivers should not operate their vehicles in public places, more particularly where the places are owned by the public. As we are only approving the denial of defendant’s motion to dismiss, other questions are left to proceedings which may follow. For purposes of this appeal, we do find that the lawn of a girls’ dormitory on the campus of a State university is a place, open to the general public under MCLA § 257-.625. The action of the recorder’s court in denying defendant’s motion to dismiss is affirmed and this cause is remanded for further proceedings. All concurred. MCLA § 750.324 (Stat Ann 1969 Cum Supp § 28.556).

Holbrook, J. Plaintiff Boyal Mink Banch, a Michigan corporation, acting through its owner, Mrs. Josie Chaddock, brought this action for damages allegedly caused by feeding plaintiff’s mink a cereal manufactured by defendant, Balston Purina Company and distributed by defendant Wickes Corporation. The feed was claimed by plaintiff to be contaminated, nutritionally deficient, negligently prepared and improperly stored. • Mrs. Chaddock’s husband, Dr. Theodore' Ch'ad: dock, is a veterinarianj practicing his profession in the Saginaw area where plaintiff’s mink tanch is located. Dr. Chaddock was also concerned in the management of his wife’s Royal Mink Ranch. Plaintiff had, prior to this difficulty, purchased in preceding years the products of Ralston Puriiia from the Wolohan Elevator at Birch Run, known as “mink breeder chow” and “mink developer chow” both concentrates which were mixed with other ingredients to provide a total ration for feeding adult breeders and baby mink. Defendant Wickes Corporation became the owner of the former Wolohan Elevator at Birch Run and plaintiff continued to purchase the chow from defendant Wickes. Both defendants denied the claims of plaintiff and defendant Wickes filed a counterclaim against plaintiff for the purchase price of the feed. The case was tried before the court and a jury. The verdict as to plaintiff’s case was in favor of defendants of no cause of action. The verdict as to defendant Wickes’ counterclaim was in favor of defendant Wickes against plaintiff for the purchase price of the feed. Judgments were filed in accordance with the verdicts. Plaintiff appeals. There is testimony in the record that plaintiff had operated the Royal Mink Ranch since 1945 and enjoyed a high reputation as a top breeder in the country; that plaintiff continued to operate the Mink Ranch after this occurrence with some improvement, but has been unable to regain the position of prominence enjoyed before 1961. As a part of the operation of plaintiff’s mink ranch a feedhouse was maintained on the property where feeds were kept and mixed for feeding the mink. The “mink breeder chow” was advertised in various trade journals and manuals by defendant Ralston Purina as containing all the proper vitamins needed by mink during their mating and whelping period from January through June. The plaintiff relied upon that representation of Balston Purina and as a result purchased defendants’ “mink breeder chow” and mixed it with other feed and fed the mix to the breeding mink for the 1961 season. During the whelping period when the young mink should be normally born many of the females were dying while giving birth, with most of the mink kittens being born dead as mummies or with severe malformations. It was the theory of plaintiff on the trial of the case, that the vitamins claimed to be present in sufficient quantities in defendants’ “mink breeder chow” were not actually present, especially vitamin A. Plaintiff claimed that the vitamin A, if present in the chow originally, had been destroyed by the negligence of both defendants in storing the chow too long and under improper conditions. The plaintiff raises 3 issues on this appeal which will be considered in proper order. 1. Did the trial court err in refusing to admit the testimony of a food ingredient man and other mink ranchers who used a prepared food containing the same “mink breeder chow” as used by plaintiff? Plaintiff sought to have admitted the testimony of David ~W. Peterson, employed in the mink food ingredient business. His testimony was taken on a separate record as provided in GrCB 1963, 604; it concerned his personal observations as to conditions present at the King Banch, another mink ranch involved in a similar lawsuit that was heard prior to the instant case, vis.: Savage v. Peterson Distributing Company, Inc. (1967), 379 Mich 197. Plaintiff claims that the testimony given by Mr. Peterson at the Savage trial was collateral to the circumstances in the present case and therefore admissible. In the Savage case the plaintiff fed his mink a ration known as Peterson’s Bedi-Mix, manufactured by Peterson Distributing Company. Tbe Redi-Mix contained Ralston Purina mink breeder chow or developer chow combined with other ingredients. In 1961, the mink on the Savage ranch suffered from an epidemic of food poisoning with resulting loss of mink, similar to that suffered by the Royal Mink Ranch. Examinations of both the mink carcasses and the Peterson Redi-Mix feed from the Savage ranch showed the presence of salmonella bacteria. Other mink ranchers from over a wide area testified at the Savage tidal that they had fed the Peterson Redi-Mix to their mink and salmonella bacteria were found in their mink. The trial judge ruled that the proposed testimony of Mr. Peterson pertaining to his observations at the Savage ranch was irrelevant to the instant case because in Savage a different feed mix was fed to the mink even though the defendant’s products were included therein. The claims in the Savage case were that the presence of salmonella bacteria caused the loss whereas in the instant case plaintiff claims the loss was caused by a deficiency of vitamins, particularly vitamin A, in the feed. In 4 Callaghan’s Michigan Pleading & Practice, § 36.207, pp 57, 58, 59 and § 36.209, pp 61, 62, it is stated: “In general, evidence as to happenings or things not involved in the controvery, or as to conditions or facts existing at other times or places than that of the occurrence or transaction in dispute, is inadmissible on the ground of irrelevancy or immateriality. * * * “But evidence of a fact or condition at another time or place is admissible when it appears, or where other evidence is offered to show, that such fact or condition bears upon the controversy or an issue therein, that it is connected with a fact or condition in dispute, or that it would likely be the same, or at least similar, at both times or places. * * * “Generally, in order that evidence may be admissible as to a similar bnt distinct fact, the relation or similarity of which is not apparent, or in order that the admission of snch evidence may not be held to be erroneous, foundation evidence is required for the purpose of showing that the seemingly extraneous fact, as to which evidence is sought to be introduced or as to which evidence has already been admitted, is connected with the controversy or an issue therein, that it is the same as, or similar to, a fact in dispute, or that the circumstances or conditions were identical, or at least similar. In other words, the fact must be connected to the case by preliminary or follow-up evidence which will satisfactorily demonstrate that evidence of the fact is competent, relevant or material.” Also see, Crane v. Valley Land Co. (1918), 203 Mich 353; Murchie v. Standard Oil Company (1959), 355 Mich 550; and Jones v. New York Central Railroad Company (1967), 8 Mich App 575. The facts present in the Savage case were dissimilar to the facts in the present case, i.e., the mink were not fed the same mix although a part of the mix was the same (defendants’ products); the bacteriological symptoms were not the same; and the feed was not purchased from the same source. Absent a proper foundation showing a substantial similarity of conditions present at the Savage ranch with those at the Royal Mink Ranch, the proffered testimony of Mr. Peterson was properly ruled inadmissible as being irrelevant and immaterial. O’Donnell v. Oliver Iron Mining Co. (1933), 262 Mich 470. Plaintiff made the following offer on the record concerning other witnesses who had used Ralston Purina feeds in feeding their mink: “Mr. Nortino: May it please the court, on the matter of the ruling of the court in the Peterson Feed, the court has ruled that the testimony of Mr. Peterson on his observation of the mink was inadmissible, distinguishing this because his was a complete redimix which was being sold and thus distinguishing it from our case. “We had listed as possible witnesses many other people who used the Peterson Redi-mix. Pursuant to the court’s ruling, I have — I do not have those witnesses here. I just simply want to state on the record that I would have tendered those witnesses except for the court’s ruling and I would not tender them at this time because it is my understanding that the court’s ruling covers these other witnesses.” Plaintiff’s counsel did not make a specific offer of what he expected to prove by these other witnesses’ testimony nor did he present them for making a segregated record and we assume in the absence of a showing to the contrary that their testimony would be inadmissible for the same reasons stated herein concerning Mr. Peterson’s testimony. GCR 1963, 604; 88 CJS, Trial, § 75; p 181; Bujalski v. Metzler Motor Sales Company (1958), 353 Mich 493. 2. Did the trial court err in admitting a report of an analysis of mink feed, exhibit 93, claimed by defendant to have come from the Royal Mink Ranch? Exhibit 93 was offered by defendant and admitted at trial over objections of the plaintiff. This exhibit had not been listed as an exhibit pursuant to the pretrial hearing order nor had defendant given plaintiff notice to produce the original exhibit 93 prior to trial. GCR 1963, 301.1 provides: “In every contested civil action the court shall direct the attorneys for the parties to appear before it for a conference to * * * “(7) produce all proposed exhibits in the possession of the attorneys in support of the main case of defense and admit the authenticity of such exhibits whenever possible.” The court in its pretrial order stated: “The court would also suggest that prior to trial date that counsel get together on the list of exhibits that may be used so that they possibly can be marked if they are going to have a lot of exhibits.” Defendants urge this court to consider this order as directory or optional with the parties; however, there were a great number of exhibits and plaintiff did comply with the order. We do not deem the pretrial order on exhibits as of no force or effect. This was one of the purposes of the pretrial hearing and if it was not clear to counsel, a request for clarification would have been in order. Absent a modification of the order it should, unless cause is shown to the contrary, control the conduct of the trial. GCB 1963, 301.3; 88 CJS, Trial, § 17(2), p 44. When exhibit 93 was offered the record discloses the following colloquy: “The Court. Why were they [reports in exhibit 93] not marked at the time I ordered the exhibits to be marked? * * * “Mr. Deibel: Well, your Honor please I’ll take the blame for that if any blame is to be had. We felt certainly that they had these in their files and I didn’t know why they didn’t — hadn’t been disclosed to us at this time.” It is now apparent why plaintiff’s counsel did not have exhibit 93 in their possession. Dr. Chaddock took many samples of feed and carcasses of mink to Dr. Newman at Michigan State Uiiiversity for testing and reports. The samples for which reports were made in exhibit 93 were delivered to Dr. Newman by Dr. Chaddock, but were taken from another mink ranch and were not from the Boyal Mink Banch. Dr. Newman when receiving samples from- Dr. Chaddock did not designate the place of origin but only that Dr. Chaddock furnished them and the reports were to be made to him. Defendant may have felt that the reports in exhibit 93 were for samples taken from plaintiff’s ranch but the exhibit does not disclose this fact on its face. Plaintiff would have been able to have the admissibility of this kind of exhibit ruled on before trial, had it been listed pursuant to the pretrial order. Plaintiff also asserts that before exhibit 93 could have been properly admitted it would have been necessary to show that the reports contained therein were from samples taken from the Royal Mink Ranch. It is true that the samples were delivered by Dr. Chaddock to Dr. Newman and this fact appeared on these reports, however, the mink ranch from which the samples were obtained does not appear on the reports. Dr. Chaddock was serving as a veterinarian for many mink ranches in the area and some of them were having difficulties at the time. The failure to connect exhibit 93 to the Royal Mink Ranch does not go to the weight and sufficiency of the evidence but rather to its admissibility. To be admissible the exhibit would have had to be properly identified and shown to relate to the subject matter of this suit by the testimony of a competent witness. 4 Callaghan’s Michigan Pleading & Practice, §§ 36.187, 36.205, 36.209. Bauer v. Veith (1964); 374 Mich 1. Also, exhibit 93, being a copy, was secondary evidence. Before it could be admitted a sufficient showing was required as to why the best evidence, i.e., the original, was not produced. Absent such a showing the exhibit was also inadmissible for this reason. 4 Callaghan’s Michigan Pleading & Practice, §§ 36.353, 36.354. Under the facts in this case we rule that the admission of exhibit 93 into evidence without properly connecting it to the Royal Mink Ranch or the feed furnished by the defendants, and the failure of the defendants to list the exhibit pursuant to the pretrial hearing order, resulted in prejudice to the plaintiff’s case and is reversible error. 3. Did the trial court err in refusing to admit testimony of an expert as to vitamin A experiments with chickens? Dr. J. R. Conch, the expert witness, was not permitted to testify as to the specific vitamin A experiments because they were made with chickens instead of mink. Defendants asserted that to permit the testimony concerning the vitamin A experiments with chickens would have been an excursion into a side issue and would have extended an already long trial. In reviewing the record, we find the following testimony of Dr. Couch: “Q. Now, have you done any work with vitamin A, sir? “A. Yes. I did my first work with vitamin A between 1931 and 1935. At that time we were using alfalfa which contains the proper vitamin A as a source of vitamin, and the work was done for Professor Sherwood, and Doctor Gr. S. Frapp, and so published in Texas Agricultural Experiment Station Bulletin in this case, actually like a good graduate student I had to do all the work, so I remember these things quite vividly. We fed chickens on various levels of vitamin A and when the hens received a low level or a level that was not- — would not meet the requirements they died; egg production stopped and the mortality went up. “I think this is characteristic because vitamin A is required by all animals. We also observed that when the hens were fed in an insufficient quantity or suboptimum level of vitamin A and we took the chicks from these hens even though the chicks hatched, the chicks were not strong enough,” Dr. Couch was for more than 30 years a professor of biochemistry and biophysics at Texas A & M University, and was well qualified as an expert. He did state in a separate record in the absence of the jury in referring to the tests that it made no difference whether they be conducted with chickens or mink. We conclude that to have permitted Dr. Couch to relate the details of the experiments would he admissible to explain the basis for his opinion as to the necessity of vitamin A in a stable form to be in feeds fed to- animals. The present court rule, GCR 1963, 605, as we read it would permit the desired testimony proffered by plaintiff to be admitted. This ruling is made in order to aid the court on the retrial of this matter. Reversed and remanded for new trial. Costs to plaintiff-appellant. Quinn, P. J., concurred

Quinn, J. Plaintiff landlords brought this action to recover rent due under a lease and for damages for alleged waste committed by defendant tenants. Defendants’ answer alleged prior breach of the lease by plaintiffs and denied any waste. Subsequently, defendants counter-claimed for credit arising from their security deposit, for damages due to the alleged destruction of their personal property by plaintiffs and for injury to their reputation, character and for mental anguish by reason of an alleged libel committed by plaintiffs. Judgment for plaintiffs entered on favorable jury verdict and defendants appeal. In support of their appeal, defendants contend the trial judge committed reversible error in charging the jury that there was no competent proof to establish an agency relationship between plaintiffs and their son and in further charging the jury that the document defendants claimed was libelous was not libel per se. Defendants also assert it was reversible error to exclude statements of unnamed persons, not present in court, as to what the alleged libelous document meant to them. Defendants are osteopaths and they rented a suite of offices in a building owned by plaintiffs whose dentist son occupied the rest of the building. In June of 1966 without prior notice to plaintiffs, defendants were in the process of moving their offices to a new location 100 feet south of plaintiffs’ building. Defendants placed signs announcing the move on the lobby door and in front of the building. Defendants’ rent was paid through June 1966. On instruction from his father, the dentist son removed the sign from in front of the building and placed it inside the building. One of defendants replaced the sign in front of the building and plaintiffs’ son again removed it. June 28, 1966, as defendants were moving some equipment from plaintiffs’ building to the new location, the dentist son demanded defendant Schneider’s keys to the Ardash building. The keys were surrendered as requested. Yacoubian Ardash. testified that he did not ask his son to demand the keys nor did he authorize the son to do so. July 6, 1966, defendants’ attorney sent plaintiffs a letter stating- that defendants considered they were no longer bound by the lease with plaintiffs, and defendants paid no further rent.' ■ March 28, 1967, plaintiffs filed this action and defendants filed timely answer. During May of Í967, Yacoubian Ardash mailed about 200 cards to the public at large announcing that he had leased 21761 Byan road (defendants’ former address) “to a group of competent medical doctors not osteopaths”. November 14, 1967, defendants filed their counter-claim, and the claim of libel therein contained was based on the quoted statement from the announcement. The pleadings and pretrial summary indicate that the controlling question in plaintiffs’ action for rent was which party actually breached the lease first. Defendants’ proof of prior breach by plaintiffs was dependent on a finding that the dentist son was the agent of plaintiffs. By its instruction, the trial court removed from jury consideration the agency question. This was error. The question of agency was disputed. There was testimony, direct and inferential, tending to establish agency. The question of ag-ency was a jury question. Miskiewicz v. Smolenski (1929), 249 Mich 63. It was not error for the trial court to instruct the jury that the communication claimed as libelous was not libel per se. Dallavo v. Snider (1906), 143 Mich 542. On its face, the communication neither refers to defendants personally nor does it impugn their professional ability. Extrinsic evidence is required to establish the personal reference and the inference of incompetence. Defendants were precluded from testifying with respect to what unnamed persons not present in court told defendants the alleged libelous communication meant to them. This was error. Although hearsay, such evidence is admissible to show the extent and effect of the publication and to sustain defendants’ claim of general damage to their reputation and profession. Poleski v. Polish American Publishing Co. (1931), 254 Mich 15. Reversed and remanded for new trial, with costs to defendants. All concurred.

Danhof, J. This is another legal milestone in the on-going zoning disputes between Woodward Avenue property owners and the city of Bloomfield Hills. See Scholnick v. City of Bloomfield Hills (1957), 350 Mich 187 and Brae Burn, Inc. v. City of Bloomfield Hills (1957), 350 Mich 425. In the latter case the Court said: “We have stressed, heretofore, in these zoning-cases, the principle that each case must be judged on its own facts. Some confusion may have arisen from its frequent repetition. The statement is merely a truism in the law, applicable to all cases, from arbitration to zoning. It solves nothing. Most assuredly it does not imply that each zoning ease stands alone, unrelated to and untouched by the others. To put it in another way, we have no ‘Woodward avenue rule,’ no ‘traffic’ rule as such, rio ‘diminution in value’ rule. All these are merely factors to be considered, pieces of the mosaic.” Plaintiffs allege that defendant’s zoning ordinance restricting plaintiffs’ property to single family residential use is unconstitutional because of unreasonableness and sought equitable relief via an injunction. This Court hears such a case de novo on the record, but gives considerable weight to the trial judge’s findings of fact. Bugariu v. Bugariu (1967), 8 Mich App 673, citing Christine Building Company v. City of Troy (1962), 367 Mich 508. The Scholnick Case, supra, was a suit to enjoin the enforcement of a zoning ordinance. Its dismissal by the trial court was affirmed on appeal. The Brae Burn Case, supra, was a mandamus action to enforce issuance of a building permit and the issuance of the writ by the trial court was reversed on appeal. In the recent case of Biske v. City of Troy (1969), 381 Mich 611, decided April 9, 1969 while the appeal of the instant case was pending, the Supreme Court distinguished the Brae Burn Case, on the basis that it was a mandamus action, whereas the equitable features of the zoning case in question were of importance in conjunction with the monotonously repeated precepts that “in determining the reasonableness of a zoning-ordinance each case must be determinéd upon, its own facts” and “that considerable weight is given to the. findings of trial judges upon review of zoning cases presenting equitable issues.” The Supreme Court then reversed division 2 of this Court and affirmed the judgment entered, in the circuit court adopting as their own the trial judge’s opinion. The Supreme Court’s opinion reads in part (p 620): “We begin a discussion of the legal aspects of this case with the recital of 3 fundamental propositions: (1) each zoning case is determined on the basis of the facts and circumstances peculiar to it; (2) to be valid a zoning ordinance must bear a direct and substantial relation to the preservation of public health, morals, safety and general welfare; and (3) that the plaintiffs have the burden of establishing affirmatively the lack of such relationship.” Applying these fundamental propositions to this case, we find that regarding the first one the facts have been well-stated in the trial judge’s opinion and we quote therefrom: “Plaintiffs’ property is located at the southwest corner of Woodward Avenue and Lone Pine Road. It has 3.1 acres of ground. A large 14 room, dilapidated house built in 1913 faces Woodward Avenue about 50 feet from the right-of-way. A garage building with living quarters is at the rear. “The defendant City of Bloomfield Hills is a Home Rule city located in Oakland County, Michigan, comprising some 5 square miles of area, having a population of about 3,000 persons. -Through the years it has developed as a city of large and expensive single family residential homes on large lots. It has little or no business properties or business zoning, except at and near Bloomfield Center, namely, the area adjacent to the intersection of Long Lake Road and Woodward Avenue. “Woodward Avenue frontage throughout the city is restrictively zoned to a single family residential use, except for some multiple family zoning, some institutional zoning and the Bloomfield Center business area. “Woodward Avenue runs in a northerly and southerly direction throughout the city. It is an eight lane, 200 foot highway. Lone Pine Road is a two lane highway, beginning at Woodward and leading westerly through and beyond the so-called Cranbrook Institution properties. “Plaintiffs’ property is presently used under right of non-conforming use as four residential areas or apartments. Concededly it is in very dilapidated and run-down condition. Plaintiffs’ property is zoned as A-3-1 classification which permits only one family dwelling per acre. The property has five sides and is adjacent or across from lots zoned single family residential to the east and south. Property on the west and to the north across Lone Pine Road is all also zoned R-3-1 residential. The property to the north is also a non-conforming multiple residence use. Plaintiffs’ property has 340.5 feet on Lone Pine Road and 249 and 97/100ths feet on Woodward Avenue. “Under the. zoning ordinance, this lot could be divided so as to constitute three single family residential sites, all facing on Lone Pine Road, or in the case of the easterly parcel, it could face either Lone Pine Road or Woodward Avenue. If so divided, the easterly parcel would then have the present house located thereon and the westerly parcel would then have the garage- located thereon. “The Cranbrook property at the northwest corner of Lone Pine Road is permitted six non-conforming apartments, four in a main building and two in a building at the rear. This building was formerly a large tea house or restaurant. “The east side of Woodward Avenue across from plaintiffs’ property is zoned solely for A-3-1 single family residential use for half a mile or more in either direction north or south. No buildings are located thereon except the rundown, old, dilapidated house. This is known as the ‘Benedict farm property.’ “"Witnesses describe traffic on Woodward Avenue as eight lanes of very heavy traffic and the traffic on Lone Pine Road as heavy. The Court has not been aided by traffic counts, but the heavy volume of traffic is common knowledge. There is a flashing yellow light at the intersection of Lone Pine Road and Woodward Avenue. “Lone Pine Road, west of plaintiffs’ property, is developed with single family residences ranging in value from $65,000 and upwards and extending half a mile west to Christ Church Cranbrook and the other Cranbrook institutions. Witnesses testified that Lone Pine Road is a very desirable residential address for which there is demand and that there are only three vacant residential parcels on Lone Pine Road. “Historically, Woodward Avenue was a two lane highway in 1913, and the Grand Trunk right-of-way and electric line right-of-way were then on the east side thereof. Subsequently, in 1930 it was widened to 200 feet and has 8 lanes of traffic pavement with a median separating north and south bound traffic. Only eight single family buildings were ever built fronting on Woodward Avenue. Most were constructed and located thereon many years ago before the widening. Some of them are now used for institutional buildings. Most of Woodward frontage still remains vacant. It has long been dormant and unused except for churches and two mansions converted to rest homes, and three old houses. “Going south on the west side and the same side as plaintiffs’ property, Woodward Avenue is zoned and has building's as follows : “Next, south of plaintiffs’ property is Lot 39 Assessor’s Plat with 101 feet frontage on Woodward and with a small, aged residence thereon. “Next, south and to the southerly city limits are acreage parcels having a total of about 3300 feet, all zoned ‘1-1 Institutional District’ on which are first the Masonic Temple and parking and grounds; then next the Church of the Latter Day Saints (one of its members has presidential asperations [sic] I hear), and then lastly, the building and spacious grounds of the Catholic Layman’s Retreat. “Going north from plaintiffs’ property and on the same and west side of Woodward Avenue are 500 feet of non-conforming multiple residential Cranbrook property zoned R-3-1 residential, but having six living apartments as mentioned before. “Then 392 feet frontage zoned institutional with the Unitarian Church and parking located thereon and with entrance also on Lone Pine Road as well as from Woodward. “Then next north 4300 feet zoned A-3-1 Residential single family and vacant except for three older houses predating zoning. “Then next north, 1120 feet zoned 1-1 Institutional district and with only a large old mansion house now reconverted and used for care of the aged thereon. “Then the business district of Bloomfield Center with a motel, restaurants, a gas station and offices. “Across the street from plaintiffs’ property on the east side of Woodward is farm land and an old, dilapidated farm house mentioned above. This property is zoned A-3-1 to the southerly city limits being the entire district south thereof; namely for about 2,050 feet, all of which is vacant land. “On the east side going north for 4,250 feet, the property is zoned Single Family A-3-1 Residential, and is all vacant. “Next north, and for about 2200 feet, Woodward frontage is more recently zoned Multiple Family Dwelling permitting four families per acre. This is well built up and further multiple dwelling buildings are under construction. “Next north, is the Braeburn property' — ■ (see 350 Mich 425), and then 1100 feet of vacant institutional zoning and then the business properties of Bloomfield Center.” The second and third propositions quoted from Bishe, supra, are answered by the learned trial judge’s findings of fact and conclusions. Specifically, he wrote: “Thus, the purpose, scope and limitations of zoning are delineated in the enabling statute and must be followed. It provides as follows: “ ‘Such regulations shall be made in accordance with a plan designed to lessen congestion on the public streets, to promote public health, safety and general welfare, and shall be made with reasonable consideration, among other things to the character of the district, its peculiar suitability for particular uses, the conservation of property• values and the general trend and character of building and population development.' (Emphasis supplied by Court.) “The present zoning of Woodward Avenue ignores the purposes, scope and limitations stated in this statute. It bears no connection with the police powers, or traffic congestion; and fails entirely to give any ‘reasonable consideration’ to the ‘character of the district,’ ‘suitability for uses’, ‘conservation of property values’ or ‘trend of building and population development’.” As said before, this Court gives great weight to the trial judge’s opinion since he had the opportunity tó see and hear all the witnesses. Additionally, the following quote from the Bishe Case is pertinent : “Meanwhile the hapless property owner waits, pays taxes and hopes that either the anticipated development will come shortly or that the zoning authority will release to some extent its griphold of his property right. What was written for the Court hy Justice Dethmers, in Gust v. Township of Canton, 342 Mich 436, 442 comes to mind here: “ ‘The extent of the owner’s right to the free use of his property in the manner deemed best by him is not to he determined by such speculative standards. The test of validity is not whether the prohibition may at some time in the future bear a real and substantial relationship to the public health, safety, morals or general welfare, hut whether it does so now.’ ” Essentially, defendant has raised two issues on appeal. (1) Did the trial court err in basing its decision on the testimony of one expert witness when five testified; and (2) were the factual and legal conclusions of the trial court supported hy the evidence? This Court finds that the trial judge acted within his discretion in giving full and controlling credence to one of several expert witnesses, and observes that defendant cited no cases holding to the contrary. With regard to defendant’s second question, this Court finds ample evidence in the record to support the trial court’s holding that the zoning ordinance is unconstitutional because it is unreasonable when applied to the 2.1 easterly acres of plaintiffs’ property, but valid as to the westerly 1 acre. We have considered appellees’ cross-appeal but are not persuaded by it. Affirmed, no costs, neither party prevailing in full. All concurred. CL 1948, § 125.582 (Stat Ann 1969 Rev § 5.2932) — Reporter.

Per Curiam. On October 16,1967, the Workmen’s Compensation Department awarded the plaintiff compensation against his former employer, defendant county of Wáyne. The award was not paid, and, following a Rule 5 hearing, an order was entered by the department on June 24, 1968, directing payment of amounts due for hospital expenses incurred by the plaintiff, consisting of $4,494 due the Veterans Administration Hospital and $4,198.19 due the May-bury Sanatorium. These amounts remained unpaid and plaintiff commenced this action in the Wayne circuit court on July 24, 1968. The circuit judge entered a judgment directing payment to the plaintiff of the 2 amounts previously mentioned, plus interest, for a total of $10,360.98. During the circuit court proceeding the defendant requested an opportunity to prove payment of $4,-198.19 to Maybury Sanatorium, but the circuit judge refused to consider such evidence. He felt that he Was precluded from considering the evidence because it appeared that the alleged payment, if made at all, was made before October 16, 1967, and, thus also before June 24, 1968. In the judge’s view the defendant should have offered such proof of payment at the workmen’s compensation hearings preceding entry of the October 16, 1967 and June 24, 1968 orders. In rejecting the proffered proof, the judge invoked the doctrine of res judicata. He also stated that the circuit court does not have the power to review decisions of the workmen’s compensation department. While the defendant concedes that its board of auditors must have known of the alleged payment before October 16, 1967, it claims that its legal counsel did not become aware of the fact of payment until after conclusion of the Rule 5 hearing. In our opinion the circuit judge erred in rejecting evidence of payment. This action was brought pursuant to the following provision of the workmen’s compensation act: “Any party may present a certified copy of a decision made by the compensation commission, or any member or deputy member thereof, in any compensation proceeding to the.circuit court of the circuit in which the injury occurred or to the circuit court of the county of Ingham if the injury was sustained without the state of Michigan, whereupon said court shall, upon 7 days’ notice to the opposite party or parties, render judgment in accordance therewith unless proof of payment is made; such judgment shall have the same effect as though rendered in an action tried and determined in said court and shall with like effect be entered and docketed.” MCLA § 413.13 (Stat Ann 1968 Rev § 17.187). (Emphasis supplied.) The right to assert the statutory defense of payment provided for in this section of the workmen’s compensation act arises independently of the right to assert the defense of payment in the Rule 5 departmental proceeding, and is not waived or foreclosed by failure to assert such defense earlier even though the facts upon which the defense was based were known before the conclusion of the Rule 5 proceeding, and, indeed, before the entry of the award of compensation itself. The department’s order of October 16, 1967 provided that “the medicals shall be paid directly to the plaintiff and his attorney and after plaintiff has endorsed the drafts, the plaintiff’s attorney shall issue his personal checks, less fees, to the proper parties.” Whether payment by the county directly to the sanatorium would constitute compliance with such order and the effect of direct payment on plaintiff’s attorney’s right to recover attorney’s fees in respect to an amount paid directly to the sanatorium are questions which need not be considered until it is determined whether the county has made payment and, if so, in what manner. It has also been suggested that if the county paid the sanatorium it would have been reimbursed by the State of Michigan which in turn may seek recovery from the plaintiff of the reimbursement amount. In this connection we note the trial judge’s statement that he “provided the county of Wayne the opportunity to pledge the county’s credit to hold the plaintiff harmless from any claim which may be made against him on account of said hospitalization at Maybury Sanatorium and the county of Wayne is not willing to pledge said credit.” If on remand it develops that the county has paid the sanatorium and has been reimbursed by the State of Michigan it will then be appropriate to determine the effect of such reimbursement on the county’s duty to make payment to the plaintiff in accordance with the department’s order of October 16, 1967. Since the county did not seek to show payment of the $4,494 in respect to the Veterans Administration and concedes that this amount remains unpaid, the portion of the trial court’s judgment covering that amount, plus interest, will be affirmed. Remanded for the entry of judgment against the county in favor of the plaintiff for $4,494, plus interest, and for further proceedings consistent with this opinion in regard to the amount of the award in respect to Maybury Sanatorium. No costs, neither party having prevailed in full. “If the department shall have reason to believe that there has not been compliance with the provisions of the compensation act, it may on its own motion give notice to the parties and hold a hearing for the purpose of determining the facts and the rights of the parties. Sueh notice shall contain a statement of the matter to be considered.” 1959 AACS, R 408.35.

Per Curiam. This action arises from a rear-end collision on an ice- and snow-covered two-lane road early in the morning of November 29, 1966. Plaintiff alleges that she was proceeding into the second turn of an “S” curve when she discovered that a snowbank covered her lane of travel. She thereupon slowed to a stop. Defendant was travelling behind plaintiff. When he saw her coming to a stop, he attempted to pass her on the left. An oncoming truck prevented defendant from passing plaintiff and when he attempted to swerve to the opposite side he skidded into the rear of plaintiff’s car. Prom a jury verdict of no cause of action and a denial of plaintiff’s motion for a judgment non obstante veredicto or, in the alternative, for a new trial, plaintiffs appeal. Plaintiff contends that the trial court erred in its charge to the jury with respect to the “sudden emergency” doctrine and plaintiff’s contributory negligence. See Socony Vacuum Oil Co. v. Marvin (1946), 313 Mich 528. These allegations are not properly before us on appeal, plaintiff having failed to make timely objection to the instructions as required by GrCR 1963, 516.2. There was conflicting testimony at trial regarding the size of the snowbank in plaintiff’s lane of travel and whether or not it was passable. Defendant testified that he did not see the snowbank because of the curve and that, when confronted with plaintiff’s unexpected stop, road conditions prevented him fropa stopping in time. This was a question of fact properly presented to the jury for its determination. See Hunt v. Deming (1965), 375 Mich 581. Affirmed. Costs , to appellee.

McGregor, P. J. Plaintiff became the owner of defendants’ property by way of condemnation, but defendants did not vacate the premises for six months and did not pay monthly rent pursuant to notice given by plaintiff shortly after the condemnation in June, 1962. Plaintiff filed an assumpsit action in the Detroit Common Pleas Court for use and occupation of the premises; however, the court dismissed the action after argument, on defendants’ motion for directed verdict, reasoning that since defendants did not specifically agree to pay rent, plaintiff’s only remedy was by a writ of assistance to secure possession of the property. The Wayne county circuit court affirmed, stating that a writ of assistance in Recorder’s Court was the exclusive remedy. The relevant portion of the Detroit Charter, Title VIII, Chapter I, § 16, contains the following language: “In case of resistance or refusal on the part of anyone to the council or its agents and servants entering upon and talcing possession of such private property for the use and purpose for which it was taken at any time after the amount of the compensation aforesaid is actually in the treasury ready to be paid to those entitled thereto, the council, by the corporation counsel, may apply to the court, and shall be entitled on making sufficient showing, to a writ of assistance to put the city in possession of the property.” (Emphasis added.) The issue presented is whether a writ of assistance in Recorder’s Court was plaintiff’s exclusive remedy, and, therefore, the Common Pleas Court was without jurisdiction to consider the assumpsit action. Our r.eply to that question is no. Plaintiff, as title holder of the condemned property, could file in assumpsit and on the common counts for use and occupation of the land. Our interpretation of the charter provision, specifically the word “may”, does not deem a writ of assistance the exclusive remedy in this matter. Plaintiff was pursuing an available remedy in the Common Pleas Court and therefore, the dismissal was error. Reversed and remanded for proceedings consistent with this opinion. Fitzgerald, J., concurred.

Fitzgerald, P. J. While snoozing in his parked automobile, complainant was awakened by the presence of a man who “jumped back” and fled. Complainant assumed that his wallet was in the hand of the man. Rising to the occasion, complainant left his automobile and began chasing the thief. An off-duty patrolman observed a man running by his car and joined in the pursuit, finally arresting the defendant as he emerged from an alley carrying his “stingy brim” hat, his sport coat, and his sunglasses, all of which the man who first passed the patrolman was wearing. Search of the defendant revealed three ten-dollar bills and two five-dollar bills. The complainant later selected defendant from a lineup of ten or twelve men. At the trial, he testified that his wallet contained four ten-dollar bills, one five-dollar bill, and three ones. Exhibit #1 at the trial was the $40 taken from defendant. Exhibit #2 was a memorandum of the lineup. Following defendant’s objections to both exhibits, they were both admitted into evidence, this admission presenting us with the two issues on appeal following defendant’s conviction by the court for larceny from the person. It is necessary to show the relevance of the amount of money seized from a suspect to the larceny charged. Neither party to this appeal considers People v. Cybulski (1968), 11 Mich App 244, wherein it is stated, citing 1 Wigmore on Evidence (3d ed), § 154, Possession of money to evidence larceny, et cetera: “ ‘The mere possession of a quantity of money is in itself no indication that the possessor was the taker of money charged as taken, because in general all money of the same denomination and material is alike. * * * But where the denominations of the money found and the money taken correspond in a; fairly close way, the fact of the finding of that specific money would have probative value and be relevant, because the money found is fairly marked as identical with the money taken.’ (Emphasis supplied.)” There is no lapse of time here, as there was in Cybulshi, where it might be argued that the defendant had time to acquire or dispose of additional money. We also note our statement in Cybulshi, which was tried before a jury, to wit: “The relevancy of the evidence has no bearing on the weight to be given it.” (Citing 1 Wharton, Criminal Evidence [12th ed], § 148.) The trial court, sitting without a jury, may assign whatever weight to evidence before it which it deems appropriate, subject only to reversal by this Court. People v. Doris White (1965), 2 Mich App 104; People v. Wheeler (1967), 7 Mich App 576. Defendant would have us reverse this conviction based on the case of Stovall v. Denno (1967), 388 US 293 (87 S Ct 1967, 18 L Ed 2d 1199), wherein it is stated that due process must be afforded defendants who are placed in lineups, including prevention of surrounding circumstances which might lead to mistaken identification. Review of the circumstances surrounding defendant’s appearance in a lineup does not convince us that he was denied any of his constitutional rights. Counsel for defendant erroneously argues that the complainant’s first observation of defendant’s face took place in the police car and that the second observation took place at the police station, allegedly tainting the subsequent lineup when the positive identification was actually made. Any question in the present mind of counsel as to whether the complainant actually saw the thief before the apprehension by the police officer is ef fectively dispelled by reference to tbe transcript of tbe trial wherein the complainant responded to questions by defendant’s counsel on cross-examination as follows: “Yes sir, I saw his whole face because I hollered at him * * * and I hollered at him and he looked at me.” Additionally, on redirect examination, the assistant prosecutor asked, “It was when he was about ten feet away from you that you got a good shot at his face?” and complainant responded, “Right.” Further questioning by defendant’s counsel and by the court on recross-examination only confirms that the complainant first saw defendant’s face at a distance of ten feet after he had jumped back away from complainant. The police officer who arrested the defendant could not have been expected to keep him from the view of the complainant who, in hot pursuit, arrived on the scene shortly after the arrest; complainant’s view of the defendant under these circumstances did not constitute a deprivation of due process under Stovall v. Denno, supra. Defendant’s allegation on appeal that there was no evidence at the trial that complainant ever gave a description of the thief to the police or to the court is irrelevant to the issue of a fair lineup. Affirmed. All concurred. MCLA § 750.357 (Stat Ann 1954 Rev § 28.589).

J. H. Gillis, P. J. On May 22, 1968, defendant pled guilty to the crime of uttering and publishing a check without having a cheeking account (CL 1948, § 750.131a [Stat Ann 1962 Rev § 28.326(1)]) and subsequently was sentenced to serve one year and eleven months to two years. Prom this conviction and sentence defendant appeals:" Defendant contends that it was reversible error for the court to have accepted his plea of guilty because it was induced by promises of medical treat ment for alcoholism. The record is devoid of specific language establishing such a promise, although it does appear that the defendant told the prosecuting attorney that he would like treatment for his addiction to alcohol. This does not establish a basis for concluding that the prosecutor promised that defendant would get medical treatment if he pled guilty. Defendant’s contention that there was no crime committed in that he was apprehended soon after he presented the check for cashing and before any money could be paid to him is without merit. See People v. Jacobson (1929), 248 Mich 639, 642. Defendant’s final allegation that the court erred by accepting his plea knowing he had a reputation of being alcoholic, is equally without merit. There is no showing in this record that the defendant was intoxicated at the time the offense was committed so as to negate the requisite intent to defraud. Affirmed. All concurred.

Per Ctjriam. Plaintiff appealed as of right from an order denying motion to consolidate arbitration proceedings or, in the alternative, to compel First Federal Savings and Loan Association of Detroit to arbitrate. First Federal has filed motion to affirm. G-CB, 1963, 817.5(3). The appeal is determined by this Court’s decision in J. Brodie & Son, Inc. v. George A. Fuller Company (1969), 16 Mich App 137. It is manifest that the questions sought to be reviewed, on which decision of the cause depends, are so unsubstantial as to need no argument or formal submission. Motion to affirm is granted.

Fitzgerald, P. J. Defendant was convicted of assault with intent to do great bodily harm less than murder and sentenced to prison. On appeal, he presents three claims of error. First, and most substantial, is the question of whether there was a valid arrest of defendant so as to permit a reasonable search of his apartment incident to the arrest. A brief review of the events will detail the information available to the authorities before the arrest: (1) Defendant’s car, a 1965 dark colored Plymouth, was investigated at about 8:30 p.m. on August 14, 1965, by the Detroit police who were checking the ages of persons seen drinking. (2) The police recorded the license number of the vehicle. (3) The same automobile was seen parked in the same spot approximately one hour later (9:30 p.m.). (4) The police saw the same Plymouth parked in a lot at the intersection of Evergreen and Warren in the vicinity of Rouge Park at approximately 12:30 a.m. of August 15, 1965. (5) Charlestta Henderson was shot at 1:40 a.m. of August 15, 1965, in Rouge Park. (6) A witness to the shooting described the automobile from which the shooting came as a “late model Plymouth.” (7) No other automobile of similar description was seen or checked by the police during that time. (8) Defendant’s name was obtained by tracing the license number through vehicle registration. Based on the above, defendant was arrested. He agreed to a search of his premises. A gun was found in a refrigerator freezer which was later identified as the weapon involved in the shooting. . The question, therefore, is whether the arrest was valid. This Court, in People v. Wolfe (1967), 5 Mich App 543, set out guidelines regarding arrests: “It is the function of the court to determine whether the facts available to the officers at the moment of the arrest would justify ‘a man of reasonable caution in the belief’ that an offense has been committed, in order to determine whether there has been a valid arrest without a warrant.” Thus, “An officer must reasonably believe and not merely suspect that the person arrested has committed a felony before the officer may make an arrest without a warrant.” The facts recited above created more than mere suspicion. These facts would create a reasonable belief in a man of reasonable prudence that defendant had in fact committed the crime. See People v. Crawford (1969), 16 Mich App 92. Second, defendant assigns error to the trial court’s refusal to permit him to present testimony at the pretrial hearing on the invalid search and arrest. The hearing on the motion to suppress consisted of the testimony of the arresting officer. He testified that he was admitted to defendant’s apartment and allowed to search the premises without any threats or any other deceitful or artful measures. He further stated that he asked defendant if they could search for a gun and defendant said, “Yes, go ahead.” Subsequently the revolver was found. Defendant’s objection is that he was not allowed to testify in his own behalf. It is clear that defend ant had a complete right of cross-examination of arresting officer Evans. The only thing that defendant could have possibly said was that he did not give the police permission to search. One may waive the issuance of a search warrant and by consent permit the search of his premises. People v. Weaver (1928), 241 Mich 616, and this is clearly what defendant elected to do. The third matter on appeal relates to incidents during the trial. Defendant claims that allowing the complaining witness to testify as to the seriousness of her injuries was prejudicial. The case of People v. Sutherland (1895), 104 Mich 468, which allows such testimony to show the aggravated nature of an assault is directly on point and dispositive of this issue. Other objections and portions of the prosecution’s closing argument relating to specific questions have been examined and deemed not prejudicial. Affirmed. T. M. Burns, J., concurred. MCLA § 750.84 (Stat Ann 1962 liev § 28.279),

T. M. Burns, J. Defendant-appellant Gregory M. Pillon filed income tax returns with the city of Detroit pursuant to his obligation under § 21-8-5(a), Detroit city code, for the years 1963 and 1965 showing a total tax due for the two years of approxi mately $65 but would not pay the taxes due. Defendant was found guilty in the recorder’s court of the city of Detroit of wilful refusal to pay the taxes due which is a misdemeanor subject to a fine of $500 and imprisonment for a period not exceeding 90 days. Defendant, an attorney, does not attempt to challenge the constitutionality of the tax nor does he deny his obligation to pay the tax. He asserts that criminal sanctions may not be used to enforce payment of taxes. He also contends that although he refused to pay for the purpose of testing the legality of the penalty, his conduct cannot be termed “wilful” for penal purposes. According to the defendant, “wilfulness” when used in a criminal statute requires some “evil intent” or “bad purpose.” He claims this intent was not evil because he had visions of poor persons unable to pay their taxes being imprisoned for failing to pay under the ordinance. We agree that some element of a “bad purpose” must be present to make the conduct subject to criminal sanctions. We conclude, however, that it is a sufficiently “bad purpose” that a taxpayer deliberately not pay the tax due when he knew he ought to pay. We are supported in our conclusion by the federal cases dealing with similar provisions in the federal income tax (Internal Revenue Code of 1954, §7203). We would call particular attention to United States v. Litman (CA 3, 1957), 246 F2d 206, cert den 355 US 869 (78 S Ct 118, 2 L Ed 2d 75), where a jury instruction as to “bad purpose” quite similar to our standard was upheld, and also the case of United States v. Murdock (1933), 290 US 389 (54 S Ct 223, 78 L Ed 381), wherein the standard of wilfulness under the federal tax statutes was given full examination. The United States Supreme Court said there, p 394, “The word is also employed to characterize a thing done without ground for believing it is lawful or conduct marked by careless disregard whether or not one has the right so to act”. The conduct of the appellant in refusing to pay the tax which he admits is due certainly comes within the meaning of “bad purpose” in the concept of wilfulness under the ordinance even if his avowed purpose in challenging the constitutionality of the penalty might be considered by some to be laudable. Defendant asserts that he refused to pay his tax and began his quixotic campaign to challenge the penalty section because he had visions of troops of poor people, who were unable to pay their taxes, being imprisoned for the failure to pay. In this, defendant has misconstrued the scope and coverage of the ordinance, for as the city-appellee asserts, mere nonpayment of a tax is not made a crime by the ordinance, particularly where inability is because of conditions beyond the taxpayer’s own control. The nonpayment penalty provisions in the federal income tax code have consistently been interpreted that way and we certainly agree. See United States v. Palermo, (ED Pa, 1957) 152 F Supp 825, note 9. See also, Spies v. United States (1943), 317 US 492, (63 S Ct 364, 87 L Ed 418). The appellant never asserted any inability to pay the approximately $65 due. He admitted his purpose in not paying was to be convicted so that he might challenge the penalty sections which he claims are in conflict with Const 1963, art 1, § 21.4 We do not find it so. Initially we would point out that Const 1908, art 2, § 20, which was in effect through 1963, did not forbid imprisonment for debt where the money was to be collected by public officers. The constitutional convention comments as found in 2 Official Record, Constitutional Convention 1961, p 3365 (1 MOLA p 752, 1 Stat Ann 1960 Rev p 427) indicate that although this specific language was dropped, it was considered excess verbiage and no change in prior law was intended. Const 1963, art 1, § 21, adopted the prior law which was that such provisions prohibit imprisonment for a debt only where it arises from a contract. People v. White (1884), 53 Mich 537. See Dallos v. Garras (1943), 306 Mich 313. Imprisonment for nonpayment of taxes then is not prohibited by Const 1963, art 1, § 21, for as the Michigan Supreme Court said in Thompson v. Auditor General (1933), 261 Mich 624, 641: “Taxes are not contractual obligations of the taxpayer to the state. Taxation is a method of raising revenue to support the government.” We find, therefore, that Const 1963, art 1, § 21 has no application to the penalty sections of the uniform city income tax act as adopted by the city of Detroit in the ordinance before this Court. We are encouraged to make this finding by the fact that similar provisions in the constitutions of other states have consistently been interpreted in a like manner. The rule is stated in 51 Am Jur, § 980, p 857. “A tax is not a debt in the sense of an obligation incurred by contract, express or implied, and therefore is not within the meaning of constitutional or statutory provisions abolishing or prohibiting imprisonment for debt, and a statute or ordinance which punishes the nonpayment thereof by fine or imprisonment is not in conflict with that prohibition”. This same rule has been upheld in the federal courts whether faced with state or federal matters. The district court in United States v. Palermo, supra, made this clear when it said (p 828), “it has been repeatedly held that neither the 13th Amendment nor any other Constitutional or statutory provision prevents imprisonment for nonpayment of taxes”. As we have found that the trial court could properly have found that the defendant “wilfully refused” to pay the taxes due and that imprisonment for nonpayment of taxes does not violate the provision of the Michigan Constitution which prohibits imprisonment for debt, we are left with his vague assertions that the imposition of criminal as well as civil sanctions for nonpayment of a tax denies due process under both state and federal constitutions. The appellant would have us attempt to limit the means of collection of the tax to the civil remedies and penalties provided. This we do not have power to do, for the power to devise means of enforcing collection and payment of taxes is vested in the legislative departments just as certainly as the power to impose the tax. Thompson v. Auditor General, supra; Spies v. United States, supra. The state legislature of Michigan by PA 1964, No 284, MCLA §§ 141.501-141.699 (Stat Ann 1969 Cum Supp §§ 5-.3194[1]-5.3194[109]) unequivocally authorized both civil and criminal enforcement of the collection of city income tax. The defendant contends that because a recalcitrant “taxpayer” might be subjected to both the civil and criminal penalties, the ordinance somehow denies him due process. The principle that criminal sanctions may be had in addition to all other sanctions, in an accumulation of collection enforcement weapons, has been approved by the United States Supreme Court, Helvering v. Mitchell (1937), 303 US 391 (58 S Ct 630, 82 L Ed 917); Spies v. United States, supra, and we approve of it here. The determination whether or not to have criminal sanctions for nonpayment and whether they should be accumulative or not is entirely within legislative discretionary power. The legislature of this State has made a decision to allow the imposition of the penalties and the city of Detroit has adopted the criminal sanctions by ordinance. As they have acted within their proper scope of their discretionary pow ers, this Court has uo power to intervene. The defendant was found by the trial court to have wilfully not paid Detroit city income taxes for the years 1963 and 1965 on his own admissions. We find no merit in defendant’s contentions regarding the constitutionality of any of the ordinances mentioned. Therefore, we affirm the conviction. Affirmed. All concurred. Sections 21-8-ll(d) (2) and 21-8-17 of the Detroit eity code are part of the income tax regulations of the eity of Detroit which complement ordinance No. 694-F, passed by the Common Council of the city of Detroit on April 26, 1962, effective May 1, 1962. This ordinance, which was amended by ordinance No. 736-F, effective February 26, 1963, ordinance No. 789-F, effective May 16, 1963, and ordinance No. 847-F, effective March 12, 1964, remained in force from July 1, 1962 to December 31, 1964. The sections of said ordinance complemented by the foregoing regulations provide as follows: “Recoverable as Debts. All taxes imposed by this division together with any interest and penalties thereon, shall be recoverable by the City as other debts are recoverable, in any court of record.” Section 8(D) (1), Ordinance No. 694-F (§ 21-8-ll(d) (2) Detroit city code). “Penalties. In addition to any interest and penalties otherwise assessed under this division, any person who shall fail, neglect or refuse to make any return required by this ordinance, or any taxpayer who shall wilfully fail, neglect, or refuse to pay the tax, penalties and interest required by this ordinance, or any person who shall refuse to permit the controller or any agent or employee appointed by the controller in writing, to examine his books and records, or who shall knowingly make any incomplete, false or fraudulent return, or who shall attempt to do anything whatever to avoid the full disclosure of the amount of income to avoid the payment of the whole or any part of the tax, shall be guilty of a misdemeanor and shall be subject to a fine not exceeding 90 days or both such fine and imprisonment for each offense. Such fine or penalty shall be in addition to any other penalty imposed by any other section of this ordinance.” Section 10, ordinance No. 694-F (§ 21-8-17) Detroit city code. Sections 21-8-32, 21-8 — 40 of the code of the city of Detroit relate to §§ 81-89, and § 99 of ordinance No. 900-F. Ordinance No. 900-F was enacted by the Common Council of the eity of Detroit on September 15, 1964 under authority of Act No. 284, Public Acts of 1964 (MOLA §§ 141.501-141.699). This ordinance affects income tax years subsequent to December 31, 1964. § 99 of ordinance No. 900-F (§ 21-8-40 city code; MOLA § 141.699), provides as follows: “Each of the following violations of this ordinance is a misdemeanor and is punishable, in addition to the interest and penalties provided under the ordinance, by a fine not exceeding $500, or imprisonment for a period not exceeding 90 days or both: “(a) Wilful failure, neglect or refusal to file a return required by the division. “(b) Wilful failure, neglect or refusal to pay the tax, penalty or interest imposed by the division. “(e) Wilful failure of an employer to withhold or pay to the city a tax as required by the division. “(d) Befusal to permit the city or an agent or employee appointed by the administrator in writing to examine the books, records and papers of a person subject to the division. “(e) Knowingly filing an incomplete, false or fraudulent return. “(f) Attempting to do or doing anything whatever in order to avoid full disclosure of the amount of income or to avoid payment of any or all of the tax.” The constitutionality of this city income tax was upheld by the Supreme Court of this State in Dooley v. City of Detroit (1963), 370 Mich 194, before defendant’s refusal to pay his taxes. We do not impose, however, the restriction on the enforcing authority of a proof of ability to pay as a necessary element of .a conviction for “wilful neglect, failure, or refusal to pay income tax”. We believe that inability to pay may more properly be pled as a defense, but, in any event, we see it as only one indication of intent not as a controlling element of the proof. But see United States v. Palermo, (CA 3, 1958), 259 F2d 825. Cousins v. State (1894), 50 Ala 113 (20 Am Rep 290) ; McCaskell v. State (1875), 53 Ala 510; Davies v. Hot Springs (1920), 141 Ark 521 (217 SW 769); Re Diehl (1908), 8 Cal App 51 (96 P 98) ; Re Nowak (1921), 184 Cal 701 (195 P 402); McCool v. State (1864), 23 Ind 127; Smith v. State (1864), 23 Ind 132; Western v. Teleg. Co. v. Franklin (1913), 93 Neb 704 (141 NW 819); Lowrie v. State Bd. of Registration (1917), 90 NJL 54 (99 A 927); Ex parte Flynn (1920), 23 Ohio NPNS 113 (31 Ohio Dec 538); Voelkel v. Cincinnati (1925), 112 Ohio St 374 (147 NE 754, 40 ALR 73); Charleston v. Oliver (1881), 16 SC 47; Deadwood v. Allen (1896), 9 SD 221 (68 NW 333); State v. Thompson (1910), 25 SD 148 (125 NW 567); South v. State (1913), 72 Tex Crim Rep 381 (162 SW 510); Salt Lake City v. Christensen (1908), 34 Utah 38 (17 LRA [NS] 898, 95 P 523); State v. Seattle Taxicab & Transfer Co. (1916), 90 Wash 416 (156 P 837). See Porth v. Broderick (CA 10, 1954), 214 F2d 925, and cases there cited. Carrollo v. United States (CA 8, 1944), 141 F2d 997; Freeman v. United States (1910), 217 US 539 (30 S Ct 592, 54 L Ed 874); United States v. Smith (WD Mich, 1945), 62 F Supp 594; Moore v. Mitchell (2 Cir, 1929), 30 F2d 600, 602 (65 ALR 1354). 28 USCA § 2007, cited by defendant, merely prevents imprisonment for debt “in any State wherein imprisonment for debt has been abolished.” See Low v. Durfee (CC Mass 1880), 5 F 256; Stuart v. Reynolds (CA 5, 1913), 204 F 709, 717-719; Freed v. Central Trust Co. (CA 7, 1914), 215 F 873, 876, 877. The Michigan legislature has not specifically made nonpayment of state income tax a crime. It has, however, made not filing a return criminal when done wilfully. CL 1948, § 207.118 (Stat Ann 1960 Rev § 7.308). The legislature has imposed, however, both criminal and civil penalties on nonpayment by a wholesaler of gasoline tax. CL 1948, § 207.118a (Stat Ann 1960 Rev § 7.308(1)). In connection with that tax, some support is given to our finding that mere nonpayment of city income tax does not subject to criminal sanctions, by OAG 1933-1934, p 21, where it states that although it is criminal not to pay over the gasoline tax, if inability to pay is due to circumstances beyond control of taxpayer then he is not guilty of any criminal offense. “§ 21. No person shall be imprisoned for debt arising out of or founded on contract, express or implied, except in cases of fraud or breach of trust.”

McGregor, P. J. Defendant appeals his conviction for contempt. CLS 1961, § 767.5 (Stat Ann 1954 Rev § 28.945). Relying on his privilege against self-incrimination, defendant refused to answer questions of a one-man grand jury. After being granted immunity under CLS 1961, § 767.6 (Stat Ann 1954 Rev § 28.946), defendant again refused to answer the questions. The attorney general obtained an order requiring defendant to show cause why he should not be cited for contempt. At the hearing the following dialogue occurred: “Mr. Koscinski (defendant’s counsel): Well, the only thing I wanted to say, your Honor please, was that this immunity is as broad as the privilege but the immunity is also limited by the statute. A grand juror cannot go beyond the statute, the limits of the inquiry as provided by statute, as was done here. “The Court: I would agree with counsel as to any subsequent action with respect to action taken after testimony was given. This reached that stage, however. I will find the defendant guilty of contempt.” On the last day of the grand jury, defendant was sentenced to one year in jail and a fine of $1,000 by the circuit court. Two issues raised by defendant are clearly without merit. He contends that the contempt statute is both civil and unconstitutional. The statute is criminal, but with a limited purge provision. People v. Joseph (1968), 14 Mich App 494. Also, see People v. Nowicki (1969), 17 Mich App 525. The contempt portion of the statute is constitutional, while the purge provision is not. People v. Giacalone (1969), 17 Mich App 508. The purge provision is not involved in this ease, as defendant was sentenced on the last day of the grand jury. Thus, defendant’s arguments are untenable. The third issue is whether the unanswered questions posed to defendant were beyond the scope of inquiry directed by the order creating the grand jury, and therefore, not covered by the grant of immunity. Defendant contends that the questions asked were not material to the inquiry. He asserts that since the inquiry of a one-man grand jury is specifically limited to the terms of the order creating it, People v. St. John (1938), 284 Mich 24, questions not material to the inquiry need not be answered. Furthermore, defendant argues that immunity cannot be granted as to questions beyond the scope of the inquiry. Thus, defendant contends that he did not have to answer immaterial questions not within the immunity grant. Plaintiff points out that defendant never demonstrated how the questions were immaterial. Since it is impractical to require the grand juror to establish the materiality of his questions, the burden is on defendant to show their immateriality. He has not done so. Furthermore, defendant was granted immunity for the particular questions asked. He did not answer. Without either his answers or a demonstration of immateriality, we will not speculate that the questions were immaterial or beyond the scope of the grand jury’s inquiry. Defendant’s failure to answer the questions was contempt. Thus, he was properly convicted. Affirmed. All concurred.

Fitzgerald, J. These two defendants were tried and convicted of receiving and concealing stolen property hy the Recorder’s court of the city of Detroit. They question here, as they did at the trial by a motion to suppress the evidence and quash the complaint and information, the sufficiency of the evidence presented at their preliminary examination, alleging that since some elements of that crime were not adequately shown by the People, they should not have been held on the charge. The following testimony was given and constituted the total evidence presented to the examining magistrate: A warrant on a charge unrelated to this case was in existence for the arrest of defendant Martinovich. His car, parked in an alley, was being watched by Patrolman Fraser when three men approached the car, two of them then entering a nearby building. Shortly thereafter, another car arrived being driven by one of the men, whereupon the other two men, plus a Mr. Gordon, appeared from the building and the trunk of the car was opened. Detective Bezian, observing large pieces of machinery in the trunk, approached the car, having been watching it from another location. Defendant "Wolak disputably slammed the trunk shut. Defendant Martinovich was immediately arrested. Defendant Wolak then stated that the car was his. The trunk and car were then searched, and defendant Wolak was arrested for possession of burglar’s tools, which the officers believed was the intended use of the machinery. Both defendants here, plus defendant Whalen who was later acquitted, were charged with receiving and concealing stolen property in excess of $100 and defendant Wolak was also, charged with possession of burglar’s tools (this charge later being dropped). The complaining witness testified that several of his drill presses had been stolen in late March, 1967, two weeks before the arrest of .the defendants, the value of all the stolen presses being $1,000. He gave the serial numbers to the Roseville police, but he was not positive if all those numbers actually corresponded to the drills actually stolen. He then testified that after the robbery he was summoned by the Detroit police and that he identified ,some property as being his. No particular items found in the trunk were shown at the examination or identified by the complaining witness at the examination as being his and having been stolen. On the basis of this evidence, the defendants were bound over for trial. Their subsequent motion- to suppress the evidence and to quash the complaint and the information was heard at the outset of their trial and was denied. Among other issués oh this appeal, they raise the apparent question: was this testimony at the preliminary examination sufficient to create probable cause to believe that the defendants committed the crime of receiving and concealing stolen property? The elements of the crime, which must be found in the evidence adduced at the preliminary examination, are: 1) that the property was stolen; 2) the value of the property; 3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; 4) the identity of the property as being that previously stolen; and 5) the guilty constructive or actual knowledge of the defendants that the property received or concealed had been stolen. We find that the people failed in some way to show any of the elements of this crime. The burden is theirs at the preliminary examination to show that a certain crime had been committed and that there was probable cause to believe that the defendant did it. Proof positive of guilt is not required. We are also reluctant to find an abuse of discretion by an examining magistrate, given his wide discretion in finding probable cause. However, justice mandates that we do remand this case and grant defendants’ motion to quash the information. The identity of the exact g’oods seized from the trunk must be proven' to be the same as the goods alleged to have been stolen. Probable cause to believe that the goods were those stolen is not enough. Proof that the goods found in defendants’ possession were the same as the goods alleged to have been stolen must be introduced to supply a basis for the findings of probable cause required of the magistrate at the preliminary examination. Failure to provide this proof effectively deprives the trial court of jurisdiction to bind the defendants over for trial as the preliminary examination findings are tainted and insufficient. To require this question to be positively answered by the people does not bear in any way on the proofs of alleged fact and guilt to be later evaluated by the jury. If the actual goods seized were not shown conclusively to have been stolen by somebody at sometime, then the more particular questions based on the remaining elements concerning defendants’ innocence or guilt of the crime charged are irrelevant. The magistrate could not have known from the testimony that the machinery seized was the machinery stolen. In other cases comparing identity of goods stolen with goods found in the possession of the defendant, the witness was examined and testified much more thoroughly as to the connection. Some of those witnesses admittedly were testifying at the trial where a jury could evaluate their testimony, but the lack of any such testimony at the preliminary examination undermines the necessary foundation upon which both probable cause and guilt must be based. In remanding this cause with directions to grant the motion to quash the information, we trust that two additional issues here raised, sua sponte, will be resolved. The people should present evidence at the preliminary examination which will tend to show that the defendants knew the machinery was stolen when they possessed, received, or concealed it. Also, the trial court will be expected to make findings of fact so that if review of its decision is required, we will know the precise reasons for the decision. Judgment vacated and case remanded with direction to grant the motion to quash. All concurred. CLS 1961, § 750.535 (Stat Ann 1969 Cum Supp § 28.803). CL 1948, §§ 767.74, 767.76 (Stat Ann 1954 Rev §§28.1014, 28.1016). CL 1948, § 766.4 (Stat Ann 1954 Rey §28.922). People v. Kennedy (1968), 9 Mich App 346; People v. Asta (1953), 337 Mich 590. Gillespie, Michigan Criminal Law & Procedure (2d ed) §2269, ét seq.; People v. Tantenella (1920), 212 Mich 614. People v. Bean (1967), 7 Mich App 402. People v. Zaleski (1965), 375 Mich 71. People v. O’Leary (1967), 6 Mich App 115. People v. Asta, supra; People v. Hall (1965), 375 Mich 187. People v. Montague (1888), 71 Mich 318; People v. Oblaser (1895), 104 Mich 579; Cole v. People (1877), 37 Mich 544; People v. Maloney (1897), 113 Mich 536. People v. Kiley (1895), 107 Mich 345. People v. Hall, supra; People v. Asta, supra. People v. Lintz (1918), 203 Mich 683. GCR 1963, 517.1; 785.1; Welsh Co. of California v. Strolee of California, Inc., (CA9, 1961), 290 F2d 509.

Per Curiam. The people appeal from an order quashing an information and discharging the defendant, Starr Dayton. Starr Dayton was charged with violating the Michigan Liquor Control Act (CL 1948, § 436.32 [Stat Ann 1957 Rev § 18.1003]) by selling liquor without a license. A preliminary examination was conducted at which the people made the following showing. George Behrens, a detective in the Kalamazoo police department, entered the club quarters of VFW Post 6252, seated himself at a table, and ordered four whisky-base drinks from defendant. Defendant served the specified drinks to Behrens and collected the price, which was 40 cents per drink. Although a member of the VFW, Behrens was not a member of Post 6252 and had not paid dues or other fees into its treasury. Neither VFW Post 6252 nor the defendant held a license for the sale of alcoholic beverages at the time Behrens was served. Upon this showing, the defendant was bound over by the examining magistrate for further proceedings in the circuit court. The circuit court subsequently discharged defendant, however, and quashed the information on the grounds that (1) defendant’s acts do not fall within the purview of the liquor control act and (2) the information was defective. In so ruling, the trial court erred. The trial court relied on People v. Budzan (1940), 295 Mich 547, in holding that defendant’s acts are not proscribed by the liquor control act. In that case an organization of workers, which the Supreme Court regarded as an unincorporated association in the absence of evidence to the contrary, bought beer with money from the treasury and dispensed it exclusively to the members at a picnic. Budzan, the association’s secretary, was arrested and charged with dispensing liquor without a license. The Court affirmed the lower court’s quashing of the information, holding that when the unincorporated association purchased the beer the rights to it vested in the members, and thus there could be no sale or gift to them. In the present case there is nothing to indicate that VFW Post 6252 is incorporated, and therefore it must be treated as an unincorporated association. But here the similarity with the Budzan case ends. The transaction between defendant and Behrens is unlike that of Budzan where liquor was purchased with monies from a common fund to which members of an unincorporated association contributed, and was then dispensed only to those members without further payment. George Behrens was not a member of the association known as VFW Post 6252, nor had he contributed to the fund from which the post financed the purchase of the liquor. Thus it cannot be said that he enjoyed rights of ownership in the liquor prior to its being served to him. The fact that he paid for the drinks after they were served to him leads one to the conclusion that the transaction was a sale within the meaning of the liquor control act. The trial court held the information to be fatally defective by reason of its failure to cite the statute under which defendant was charged. The body of the information clearly sets forth the charge against defendant. The statute under which an accused person is charged need not be cited in the information. People v. Eger (1941), 299 Mich 49; People v. Freedland (1944), 308 Mich 449. The order quashing the information is reversed.

R. B. Burns, J. Defendant appeared before the Honorable Philip Pratt, circuit judge and grand juror, and was asked the following questions: “1. While you were on the township board, did anyone ever approach you and offer you any consideration, money or otherwise in an attempt to influence your vote on any matter coming before the board? “2. And did anyone complete the attempt, that is, did anyone actually pay you some money or any other consideration for your vote on any matter before the township board? “3. Do yon have any knowledge of anyone paying any money to any township hoard member or to any township official to influence the action of such official?” To each of these questions defendant answered, “No, sir.” Defendant was thereafter charged with perjury on three counts, based upon his answers to the above questions, and found guilty. He raises 10 different claims of error, many of which appear almost frivolous. Defendant claims that the examining magistrate erred in binding him over for trial on the charge of perjury. He contends that the State did not prove that the crime was committed because the transcript of the grand jury inquiry was not introduced into evidence. An examination of the transcript before the municipal judge reveals that the transcript of the grand jury was offered in evidence, defendant’s attorney stated that he had no objections, and it was received. The various claims of error based on the assumption that the transcript before the grand jury was not admitted into evidence are untenable. Defendant claims the trial judge erred by admitting certain recordings of conversations between the defendant and a prosecutor’s witness. The rules that are generally considered to constitute a proper foundation for the admission of sound recordings into evidence are set forth in 58 ALR2d 1024, 1027: “(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the re cording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.” The prosecution established the proper foundation and the trial court did not err by admitting the recordings into evidence. Defendant claims that the trial court erred in refusing to quash the information where the information failed to allege both the materiality of the false statement and that the grand jury proceeding was one in which an oath was required. The record indicates that defendant filed two separate motions to quash the information prior to trial, but neither motion set forth the abovementioned grounds. This Court will not consider error alleged for the first time on appeal. People v. Will (1966), 3 Mich App 330. The Supreme Court has decided that the one-man grand jury is constitutional and this issue does not require further discussion. In re Colacasides (1967), 379 Mich 69. Defendant claims that the trial court erred by submitting the first two counts in the information to the jury as there was no evidence to substantiate a verdict of guilty on the counts. We agree. The transcript does not contain any evidence showing that anyone attempted or completed a bribe to the defendant while he was on the township board. Defendant attempted to qualify his answer to the third question (Count 3), but at all times denied knowledge of any bribes to township officials. The testimony of one witness established that the defendant had bribed the witness, a township official, and if believed by tbe jury was sufficient to sustain tbe conviction. Tbe other issues submitted by tbe defendant bave been considered but do not merit discussion. Tbe case is remanded to tbe trial court for reconsideration of tbe sentence in light of this opinion. All concurred. CL 1948, § 750.422 (Stat Aim 1954 Rev § 28.664.)

Per Curiam. Glennie Nicholson and Marvin Le-Mar, each represented by counsel, pled guilty to count three of an amended information charging malicious threats to extort money contrary to CL 1948, § 750.213 (Stat Ann 1962 Rev § 28.410). After a thorough examination of each defendant the trial court accepted the pleas. The defendants were sub sequently sentenced to a term of imprisonment and have filed a timely claim of appeal. At the time of sentence the trial court took note of the probation report which indicated that defendant Nicholson had been drinking before the crime was committed. The trial court expressed a desire to inquire, sua sponte, into the extent of defendant’s intoxication before passing sentence. At the outset of this inquiry defendant Nicholson displayed a sudden lapse of memory regarding his state of mind during the time the crime was committed which he could only attribute to the fact that he was drinking. After the trial court expressed some reservation about accepting the plea, defendant’s memory underwent a remarkable recovery. The several pages of transcript which follow demonstrate a detailed recitation of the crime which corroborates defendant’s remarks during the plea proceeding. At the conclusion of this examination the court expressed its satisfaction that defendant’s intoxication would not negative the existence of specific intent. The record clearly supports this result. Nevertheless, defendant Nicholson contends that the trial court should have rejected the plea after defendant initially stated he was “drunk.” Defendant LeMar maintains that if defendant Nicholson’s plea is unacceptable because of a possible defense of intoxication then his plea is also unacceptable because he was an accomplice and as such has all the defenses which would be available to his co-defendant. The people have filed a motion to affirm the conviction and sentence. The case of People v. Paul (1968), 13 Mich App 175, 176, 177, is dispositive of the questions presented herein. “A review of defendant’s brief, the motions to dismiss and to affirm, and the transcript of the plea examination discloses that the plea of guilty was made freely, understandingly, and voluntarily by defendant. The transcript further shows that although defendant had been drinking, he was not so intoxicated as to negative the existence of the specific intent to commit rape, and defendant did by his plea affirm the existence of such intent. The prosecution is under no obligation to prove anything during the examination by the court of one seeking to plead guilty.” ■ The motion to affirm the convictions is granted.

T. M. Burns, J. Appellant here appeals the dismissal of his complaint for a writ of habeas corpus against the department of corrections, pardon and parole commission, by the circuit court. The essential facts in this cause are not in dispute. On January 30, 1953, following a conviction for possession of narcotics, plaintiff was sentenced in the recorder’s court of the city of Detroit to Jackson prison for a period of from eight to ten years. In May, 1958, he was placed on parole pursuant to MCLA § 791.236 (Stat Ann 1954 Bev § 28.2306), but was to remain in legal custody of the parole board under MCLA § 791.238 (Stat Ann 1954 Bev § 28-.2308) for the balance of his maximum term to August 23. 1960. On September 23, 1958, plaintiff was arrested by tbe Federal authorities and charged on October 19, 1958, with a violation of the Federal narcotics laws. He was tried and convicted in the United States district court for the eastern district of Michigan, southern division, on February 13, 1959, and thereafter, on March 18,1959, was sentenced to a Federal prison for 12 years. Plaintiff appealed from the conviction and prevailed. Thereafter, on January 31, 1962, plaintiff was re-tried and convicted for the above-mentioned Federal offense and sentenced to 10 years, the sentence to commence on March 18, 1959, the date of his original sentencing in Federal court. The Assistant Attorney General who appeared at the hearing on the motion for the writ stated that after the charge in Federal court the parole board promptly issued a warrant charging plaintiff with a parole violation as of the date of his arrest by Federal authorities. This warrant was issued on May 4, 1959, and would have been executed, claims the defendant, except that the petitioner was a Federal prisoner, even though he was in Wayne county jail for an extended time during this period. On April 7, 1965, plaintiff was released from Federal prison and placed on parole by the Federal authorities. On that same date he was arrested by Michigan parole officers executing the 1959 warrant. The defendant claimed at the hearing that this was the first opportunity to execute the warrant. Having arrested the plaintiff, the parole board then decided not to revoke his parole but to re-parole him with such parole to run concurrently with the Federal parole to March 7,1967. The parole board also decided that plaintiff was not to be given credit on the Michigan sentence, which was to have expired August 23, 1960, for the time spent in Federal custody from September 23, 1958 to April 7, 1965. On August 10, 1966, plaintiff was arrested in Highland Park, Michigan, on a charge of illegal possession of narcotics; and although that charge was dismissed by the Highland Park municipal court, on the basis of a motion to suppress illegally seized evidence, the defendant issued a parole violation warrant on September 22, 1966, with respect to these charges. The plaintiff thereafter initiated these proceedings. It should be noted that after the hearing on the motion for the writ and its denial, the plaintiff was again arrested by Federal authorities on a narcotics charge. The plaintiff has been arraigned and released on bond pending trial in the Federal district court of eastern Michigan, southern division. The defendant, not having filed a brief on appeal, relies upon the arguments presented in the record. The thrust of the defendant’s argument is that under MCLA § 791.238 (Stat Ann 1954 Rev § 28.2308) it is directed not to credit against a term any time from the date of declared delinquency until the alleged delinquent is taken into actual custody by the parole board and returned to the institution from which he was released. After careful examination of this statute and the cases of In re Ginivalli (1953), 336 Mich 101, and in In re Carpenter (1957), 348 Mich 408, we find the present case is distinguishable from the cases and is not within the purview of the particular clause of the cited statute. The clause upon which the defendant relies deals with prisoners on parole who violate the provisions of their parole and remain at large. "We note parenthetically that there has been a recent amendment to MCLA 1969 Cum Supp § 791.238 (Stat Ann 1969 Cum Supp § 28.2308) which would allow the parole hoard to deny a parolee any credit for time from “date of declared violation to date of his availability for return to any penal institution under the control of the commission.” However, there is no showing here by the defendant that plaintiff was unavailable for return and certainly absent some request for custody the defendant has a heavy burden to prove a practice which would deny it custody. These questions of custodial availability or unavailability which may be relevant under the amended section are not before us, however, and we do not concern ourselves with them. We must dispose of this case under the prior law. Under the prior law, the so-called “dead time” provision declared that a parolee could not be credited as time served any time from date of declared delinquency to arrest. On its face then the prior law dealt with the situation where the delinquent parolee ■was at large and his whereabouts were unknown to the parole authorities. The petitioner here comes under the provision of MCLA § 791.238 (Stat Ann 1954 Eev § 28.2308) which reads: “Any prisoner committing a crime while at large upon parole and being convicted and sentenced therefor shall be treated as to the last incurred term, as provided under section 34 of this act.” The plaintiff was not at large during his declared delinquency, but in federal custody on a separate charge. The plaintiff points to the case of In re Carey (1964), 372 Mich 378, where the Supreme Court decided that unless there was specific statutory direction sentences imposed in state courts subsequent to a Federal sentence should run con currently. The plaintiff argues that if he had been sentenced in the state court after his sentence in Federal court the state sentence would have run concurrently and, therefore, it is grossly unfair for us to allow the parole board to deny him credit for the time served in Federal custody in this case. In MCLA §791.234 (Stat Ann 1969 Cum Supp §28-.2304) to which we are referred by MCLA § 791.238 (Stat Ann 1954 Rev § 28.2308), we note that the statute speaks in terms of cases where the prisoner has received sentences for consecutive terms. Although a contrary result may be commanded by the amended § 38, we think under the law as it applies to this case, In re Carey (1964), 372 Mich 378, directs us to find that the parole board should have credited the plaintiff for time served in Federal custody. We are persuaded to this result by what we consider to be fundamental standards of fairness, but even more so by the arguments presented by the Attorney General in the Carey case. We see in those arguments the direct parallel to the case before us. The Attorney General argued there that, “the department of corrections has consistently held that sentences to be served in a federal penitentiary and a Michigan penitentiary were consecutive and has not considered that a person had served his minimum Michigan sentence until he had spent the allotted time in a Michigan prison.” The Supreme Court clearly rejected that argument as without justification and eliminated the distinction between time served in Federal and Michigan prisons. In re Carey, supra (p 381). Here we are faced with a case even more clear than Carey. Here the plaintiff had served his minimum sentence in a Michigan prison. Here the plaintiff would have been discharged completely from parole board custody upon serving his maxi mum sentence just two years after lie was arrested by Federal authorities. Yet, here the plaintiff, almost nine years past the end of his original maximum sentence, is still seeking his release. The parole board here issued the warrant in a timely manner but refused to attempt execution. It chose instead to place a detainer on the plaintiff’s release from Federal prison. Then after refusing to allow the state sentence to run concurrently with the Federal imprisonment, and after arresting this plaintiff for his parole violation, the board re-paroled him with this parole to run concurrently with the federal parole until March 7, 1967. Although a parole revocation hearing is not a trial with full constitutional implications, certainly we think the allegedly delinquent parolee has a right to have the parole board exercise reasonable diligence in seeking to hold a revocation hearing. If he is at large and if the parole board has knowledge of his whereabouts, either actual or constructive, it must seek to execute its warrant within a reasonable time. Greene v. Michigan Department of Corrections (CA 6, 1963), 315 F2d 546. If he is in custody, as here, the parole board having issued a warrant must seek with that same degree of diligence to execute it, and to hold the revocation hearing. On this right to a hearing within a reasonable time, and noting that if he were in the custody of the parole board such hearing by statute must be held within 30 days, MOLA § 791.240 (Stat Ann 1954 Rev § 28-.2310), we find the reasoning behind the recent United States Supreme Court case of Smith v. Hooey (1969), 393 US 374 (89 S Ct 575, 21 L Ed 2d 607) which was concerned with constitutional right to speedy trial, most persuasive. We think the con siderations which they expressed there are relevant to a hearing on parole revocation as well. Therefore, we quote at length from the opinion in Smith v. Hooey, supra (pp 378-380): “At first blush it might appear that a man already in prison under a lawful sentence is hardly in a position to suffer ‘undue and oppressive incarceration prior to trial.’ But the fact is that delay in bringing such a person to trial on a pending charge may ultimately result in as much oppression as is suffered by one who is jailed without bail upon an untried charge. First, the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Secondly, under procedures now widely practiced, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him. “And while it might be argued that a person already in prison would be less likely than others to be affected by ‘anxiety and concern accompanying public accusation,’ there is reason to believe that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large. Cf. Klopfer v. North Carolina, supra, 386 US at 221, 222 (87 S Ct at 992, 993, 18 L Ed 2d at 6, 7). In the opinion of the former Director of the Federal Bureau of Prisons, “ ‘ [I] t is in their effect upon the prisoner and our attempts to rehabilitate him that detainers are most corrosive. The strain of having to serve a sentence with the uncertain prospect of being taken into the custody of another state at the conclusion interferes with the prisoner’s ability to take maximum advantage of his institutional opportunities. His anxiety and depression may leave him with little inclination towards self-improvement.’ “Finally, it is self-evident that 'the possibilities that long delay will impair the ability of an accused to defend himself’ are markedly increased when the accused is incarcerated in another jurisdiction. Confined in a prison, perhaps far from the place where the offense covered by the outstanding charge allegedly took place, his ability to confer with potential defense witnesses, or even to keep track of their whereabouts, is obviously impaired. And, while ‘evidence and witnesses disappear, memories fade, and events lose their perspective,’ a man isolated in prison is powerless to exert his own investigative efforts to mitigate these erosive effects of the passage of time.” Although the parole board has broad power discretion, we believe that in the case of this plaintiff it has abused it by not attempting to execute its warrant and by not giving him a timely hearing. Therefore, we reverse and remand for the issuance of the writ and termination of parole. All concurred. PA 1968, No 192. Repealed by PA 1968, No 192, which replaced it by § 40a (MOLA 1969 Cum Supp § 791.240a; Stat Ann 1969 Oum Supp § 28.2310[1]).

Danhof, J. Plaintiff township sought to enjoin the operation of a sand and gravel sales and distribution business owned by defendants, alleging that it violated the township zoning ordinance. The business, which included the storage of sand, gravel, and construction equipment, was located in an area zoned B-3 (General Business District). Although not specifically prohibited as a B-3 use, the storage of sand and gravel was expressly a use permissible on special approval in areas zoned LI-1 (Light Industrial Districts). The case was submitted to the circuit judge on stipulated facts and he denied the injunction for the reason that the zoning ordinance did not specifically prohibit the business being carried on by defendant. Plaintiff appealed, contending that the sand and gravel operation was not a retail business permitted in the B-3 General Business Districts, since such an operation was specifically provided for in the LI-1 Light Industrial Districts, citing Township of Pittsfield v. Malcolm (1965), 375 Mich 135; Fass v. City of Highland Park (1948), 320 Mich 182, modified on rehearing (1948), 321 Mich 156; Prevost v. Township of Macomb (1967), 6 Mich App 462, leave to appeal denied (1967), 379 Mich 768. This Court quotes with approval from the Prevost Case, supra: “The general principles relating to construction of ordinances apply to the construction of zoning ordinances. The basic requirement is that intent be discovered and given effect.” The Supreme Court said in the Pittsfield Case, supra: “Under the ordinance which specifically sets forth permissible uses under each zoning classification, therefore, absence of the specifically stated use must be regarded as excluding that use. This is especially true where the use is expressly permitted under the other classifications:” This Court holds that the defendants’ business is not permitted within the area zoned by plaintiff as B-3 (G-eneral Business Districts), and that plaintiff’s prayer for relief should he granted. Reversed and remanded for entry of judgment consistent with this opinion. Costs to plaintiff. All concurred.

Per Curiam. Plaintiff Edna Perry was injured when she tripped and fell over a stock cart while shopping in defendant’s market. From a jury verdict of no cause of action, plaintiff Edna Perry and her husband Ralph Perry appeal. Plaintiffs’ argument on appeal boils down to two issues: (1) that the trial judge erred in his instructions to the jury by advising the jury that in considering the extent of injuries and the allowable damages the jury was bound by what had actually been introduced through competent testimony and was available for the jury’s consideration, and in reviewing what that evidence was; and (2) that the verdict was against the great weight of the evidence. An examination of the briefs and records shows that Edna Perry failed to establish that she suffered permanent injuries to her back. It was not error for the trial judge to state this fact to the jury. Scripps v. Reilly (1878), 38 Mich 10. Plaintiffs’ attorney presented their case. Now, on appeal, they argue that defendant did not call a witness crucial to plaintiffs’ case. If this be the case, the error is tactical and is plaintiffs’, not the court’s. The record is replete with such lapses on the part of plaintiffs’ attorney. The jury deliberated on the weight of that evidence properly before the court. The trial judge in his instructions correctly apprised the jury of their scope and duties in his charge to the jury. If error there be, it was not the court’s. Affirmed.

Lesinski, C. J. Defendant appeals his conviction for escape from prison contrary to MCLA § 750.193 (Stat Ann 1969 Cum Supp § 28.390). Defendant’s first allegation of error is that he was not arrested and arraigned promptly after being captured and returned to prison. After formal charges were brought, he was promptly arraigned, so there is no question of a violation of MCLA § 764.26 (Stat Ann 1954 Eev § 28:885). Defendant’s real contention .is that the prison authorities denied him due process of law by keeping him in detention for 36-Mays after his recapture before charging and arraigning him for the escape. “There is no constitutional right to be arrested.” Hoffa v. United States (1966), 385 US 293, 310 (87 S Ct 408, 417, 17 L Ed 2d 374), Defendant was properly incarcerated under his original conviction; we fail to see how the delay in bringing the escape charge has prejudiced him. Cf. People v. Nawrocki (1967), 6 Mich App 46, 54. Defendant’s second contention is that it was error to deny his motion for mistrial after the arresting officer testified that he placed defendant under arrest for “strong-armed robbery”. The trial judge :prbpe'rly warned the jury to disregard this reference to another crime not relevant to the escape. Defendant argues that this warning by the judge merely “reemphasized” the error. To follow this liné' of- reasoning, there would have to be a mistrial every time a witness misspoke, since no' error could ever be cured by instructions. Such is obviously not the law. An unresponsive answer by a witness can generally be 'cured by proper instructions. People v. Kelsey (1942), 303 Mich 715. ’ Deféndant next maintains that his record - of conviction was not properly introduced in evidence as a “business record”, so that the prosecution failed to prove that he was properly confined at the time of the 'escape: However, it is not necessary to introduce the certificate of confinement as a business record, since MCLA § 800.50 (Stat Ann 1954 Eev § 28.1419), provides that the certified copy of the sentence which is deposited with the prison warden “shall he evidence of the facts therein contained”. Defendant does not contend that the document admitted was not the proper one. Finally, defendant protests that he only fled the prison work camp in desperation to avoid homosexual attacks by other prisoners. The problem of homosexuality in the prisons is serious and perplexing, and never more so than in a case such as this where such activity is forced upon a young man against his will. However, the answer to the problem is not the judicial sanctioning of escapes. While we have no reason to doubt the sincerity of this defendant, it is easy to visualize a rash of escapes, all rationalized by unverifiable tales of sexual assault. The solution must rather come from some kind of penological reform. Two legal theories are offered to support defendant’s claim that his departure from the prison work camp should not be punished as an escape. First, he argues that he did not have the specific intent to escape. A reading of the escape statute, MCLA § 750.193 (Stat Ann 1969 Cum Supp § 28.390), shows no indication that the legislature intended to make this a specific intent crime. The language is rather that of general prohibition. Defendant does not deny that he intended to leave the prison, and this is all the intent the law requires. Of. 1 Gillespie, Michigan Criminal Law and Procedure, § 20. Second, defendant seeks to justify his escape as caused by an irresistible impulse. The trial court properly excluded the evidence proffered on this point, since defendant did not give the required four-day notice of an insanity defense, MCLA §§ 768.20, 768.21 (Stat Ann 1954 Bev §§ 28.1043, 28-.1044). The record does not support defendant’s claim that he did not have four days’ notice of the trial date; defendant’s counsel signed subpoenas on November 14 for appearance on the trial date of November 20. Affirmed. All concurred. The Court is aware of People v. Hernandez (1968), 15 Mich App 141, which by a’ decision of 2 to 1 considers a delay in arrest a violation of due process. This panel does not agree with the holding of that case and will not follow it until the ruling of that case is determined feontrolling in similni- cases by the Michigan Supreme Court. “Any person, being imprisoned in a prison of this state for any term, who * * * shall leave said prison without being discharged from said prison by due process of law, * * * glxall be guilty of a felony.”

Lesinski, C. J. Plaintiff Marvin Belt was the owner and operator of a truck leasing business in Michigan, and defendants were all enforcement officers for the Michigan Public Service Commission (hereafter referred to as the MPSC). In performing their duties of enforcing the laws of the State of Michigan regulating the trucking industry, defendants came to believe that Marvin Belt was not running a regular leasing operation, but was actually hauling goods for hire under cover of his truck leasing arrangements. They accordingly caused the arrest and prosecution of plaintiff several times between October, 1961 and March, 1964, on the charge of hauling for hire without MPSC authorization, CL 1948, § 477.1 (Stat Ann § 22.548). The first such prosecution resulted in conviction, both before a justice of the peace and upon appeal to the Oakland county circuit court (case No. CB 19907). Plaintiff was also convicted by a jury of hauling for hire without authority on July 26, 1962, but that case was reversed on appeal on a technicality in the issuance of the warrant. However, two other prosecutions initiated by defendants against plaintiff for hauling for hire without authority (relating to shipments on July 2, 1962 and January 14, 1963), ended in acquittal for plaintiff. Based on these two prosecutions and related events, plaintiff has brought the instant civil action against defendants, charging malicious prosecution, false arrest, false imprisonment, illegal interference with private contracts, abuse of process, and violation of plaintiff’s civil rights under color of law. Defendants responded to plaintiff’s complaint with a motion for summary judgment which was denied pending the filing of an answer. After an answer was filed and a pretrial conference held, defendants filed another motion for summary judgment, supported by affidavits and documents. The trial judge granted summary judgment for defendants on the counts for illegal interference with private contracts and violation of civil rights, but he denied it on all the other counts. Defendants applied to this Court for leave to appeal, pursuant to GrCR 1963, 806.2 (see 378 Mich lii), from the lower court’s denial of their motion for summary judgment as to all counts except the two, and this Court granted defendants leave to appeal by order of June 13, 1968. On the several issues presented by the parties on this appeal, all but one can be easily and quickly resolved. Plaintiff’s claims for false arrest and false imprisonment are all predicated upon arrests made pursuant to warrants issued by justices of tbe peace, which appear to be fair on their face. Plaintiff does not challenge the validity of these warrants, and we can find no defects obvious on their faces. It has long been the law in this State that an action for false arrest or false imprisonment will not lie against an officer who merely executes a warrant, fair on its face, from a court having proper jurisdiction. Brown v. Hadwin (1914), 182 Mich 491; Bridgman v. Bunker (1968), 12 Mich App 44. It follows that defendants should have been granted summary judgment on the counts for false arrest and false imprisonment in this case. Plaintiff also failed to state a cause of action for abuse of process on the facts presented. “ ‘This action for the abuse of process lies for the improper use of process after it has been issued, not for maliciously causing it to issue.’ ” Spear v. Pendill (1911), 164 Mich 620, 623, quoting 32 Cyc, p 541. See, also, Moore v. Michigan National Bank (1962), 368 Mich 71. Plaintiff does not allege that the process in question was used other than to prosecute bim for hauling for hire without proper authority. His only real complaint is that defendants wrongfully caused the process to issue, but that is actionable, if at all, only as malicious prosecution. Summary judgment should have been granted for defendants on the claim for abuse of process. This leaves only the count for malicious prosecution. Defendants’ primary contention on this appeal is that summary judgment should have been granted because police officers in Michigan should have immunity from suit for malicious prosecution, such as was declared in California by the case of White v. Towers (1951), 37 Cal 2d 727 (235 P2d 209, 28 ALR2d 636). This question of police immunity from civil suit for malicious prosecution has never, to our knowledge, been raised in Michigan. This case squarely presents the issue. White v. Towers, supra, declared full immunity for peace officers (in that case, a State fish and game investigator) from suit for malicious prosecution, even where the officer acts maliciously and without probable cause, so long as he acts within the scope of his authority. The Supreme- Court of California identified the conflict which poses the central philosophical problem in cases such as this: on the one hand, there is the public policy of “protecting individual citizens from oppressive official action”; on the other hand, there is a real need of “promoting the fearless and effective administration of the law for the whole people by protecting public officers from vindictive and retaliatory dam age suits”. The court decided that the latter consideration is the more important, and it justified its denial of civil redress to citizens injured by “oppressive official action” by saying that a criminal prosecution for the official misdeeds would vindicate the victim to some extent and would serve the public better than a civil damage action. A number of other cases have adopted the same approach, so that it is generally stated that the allowance of immunity to police officers is the “better view”, or the prevailing one. However, there is a direct split of authority on this point; a number of cases have denied total immunity from suit for malicious prosecution to police officers, even when acting within the scope of their authority. Atkinson v. Birmingham (1922), 44 RI 123 (116 A 205, 36 ALR 366); Motley v. Dugan (Mo App, 1945), 191 SW2d 979; Vesey v. Connally (1960), 112 Ohio App 225 (175 NE2d 876); Wendelboe v. Jacobson (1960), 10 Utah 2d 344 (353 P2d 178). We are inclined to agree with these latter cases, for several reasons. We certainly agree with the proposition that our police officers should be encouraged to enforce the law vigorously. However, we do not share the fear, stated in White v. Towers, supra, and other cases, that a limited liability for malicious prosecution would force policemen to become timid in doing their job. No evidence other than judicial supposition has been presented for such a view. On the other hand, the citizen who is injured in the rare instance of genuine malicious prosecution by a police officer will not have an adequate remedy in the absence of the common-law action for malicious prosecution. Except in the ease of a sheriff, there is not the possibility of electoral defeat of the malefactor which is sometimes mentioned as a sufficient remedy against judges and prosecutors. Criminal or administrative sanctions are also of questionable efficacy since the officials who would be responsible for applying those sanctions are likely to be the same who have an interest in maintaining good relations with police officers. But even rigorously applied sanctions would have the effect of vindicating only the interests of society in general. The particular citizen may have suffered a variety of injuries which would be compensated by a tort judgment but not by a criminal prosecution. He should be allowed his traditional tort remedy unless serious considerations of public policy weigh otherwise. As has already been pointed out, they do not. The action for malicious prosecution has always been carefully circumscribed by the courts, in recognition of its potential for abuse. Roblyer v. Hoyt (1955), 343 Mich 431, 435; Prosser, Torts (3d ed), § 113, p 859. Thus there are safeguards already built into the law of malicious prosecution which enable us to allow the action against police officers without fear that it can be used unfairly against them. In order to sustain the charge of malicious prosecution, a plaintiff must prove that a criminal prosecution was instituted against him which terminated in his favor, that defendant had no probable cause for the prosecution, and that defendant acted from malicious motives. Drobczyk v. Great Lakes Steel Corporation (1962), 367 Mich 318; Roblyer v. Hoyt, supra; Thomas v. Bush (1918), 200 Mich 224. There must he both the absence of probable cause and the presence of malice. If plaintiff fails to prove either of these key elements, he will lose his case. The main focus is usually upon probable cause, because if this is established, it becomes irrelevant whether defendant was also motivated by malice. Prosser, Torts (3d ed), § 113, pp 859, 860. Also, there is a consideration of defendant’s good faith involved in the determination of probable cause, so that it is sometimes said that malice may be inferred from lack of probable cause, though the converse inference is not permitted. Drobczyk v. Great Lakes Steel Corporation, supra, p 323. It has been held repeatedly in Michigan that where a person fully and fairly states the facts known to him to a prosecuting attorney, and signs the complaint on his advice, probable cause will be considered established so as to prevent a judgment for malicious prosecution against that person. Modla v. Miller (1955), 344 Mich 21; Baker v. Barach (1941), 297 Mich 219; Thomas v. Bush, supra. This is true for police officers as much as for anyone else. In addition, an officer is protected if he has a good-faith belief that there is probable cause, even if it turns out that probable cause did not exist in fact. It would thus appear that the only situation in which an action for malicious prosecution would properly lie is where a police officer knowingly swears to false facts in a complaint, without which there is no probable cause. When the action is thus defined, it becomes unnecessary to determine whether a defendant police officer was acting “within the scope of his authority”, since the tests to be applied to his behavior will be the same whether he is or is not so acting. Turning to the facts of the instant case, it is clear that both of the complaints in question were accompanied by recommendations for issuance of warrants signed by assistant prosecutors. This in itself is enough to shield defendants from suit for malicious prosecution under the rule already referred to, if they stated the facts as known to them freely and fairly to the prosecutor. His signed recommendation for issuance of a warrant should certainly be considered equivalent to advising a defendant to sign the complaint. Modla v. Miller, supra; Baker v. Barach, supra; Thomas v. Bush, supra. Therefore, the only possible issue that could go to trial in this case would be a factual one, whether defendants knowingly swore falsely to the facts stated in the complaints, thereby negating probable cause' and demonstrating malicious intent. Plain tiff does allege in his pleadings that defendants swore falsely, and this issue is not cleared up by the affidavits in the record. Therefore, the case will have to be sent back for the taking of proofs on this issue. There are two aspects or elements to the crime of hauling for hire without authority, as it was charged in the complaints in this case. One element is that plaintiff’s lease arrangement was a sham behind which he acted illegally and the. other eler ment is that he actually hauled goods for hire at a certain place and time. Defendants necessarily swore to both of these elements in order to establish a prima facie offense. The question as to whether defendants knowingly swore falsely regarding the facts in charging that plaintiff’s lease was a sham requires an interpretation of the complex subjective judgment of the defendants in bringing the charge. Such a determination cannot be made except by trial. Further, we have no evidence on the record before us as to the truth of the statements in the complaints relating to actual hauling of goods by plaintiff’s trucks and drivers on specific dates and at specific places. Plaintiff alleges the statement of these facts to be false and made by defendants knowing them to be false. Therefore, plaintiff is entitled to a trial to prove that defendants had no factual basis for their allegations and charge. We remand for trial of this narrowly-defined issue. Reversed and remanded for trial in accordance with this opinion. No costs, neither party having prevailed in full. All concurred: Defendant Turner was ehief of the enforcement section of the MPSC, defendant Stephens was assistant chief of the section, and defendants Neigebauer and Ritter were enforcement inspectors. Plaintiff raises two insubstantial procedural claims: (1) that a denial of summary judgment is not appealable to this Court, and (2) that denial of the first motion for summary judgment foreclosed the later renewal of the motion. The first point is completely answered by GCR 1963, 806.2(3), which empowers this Court to grant leave to appeal from “any order” of the circuit court not appealable by right, as we did in this ease. The seeond point could be answered simply by pointing out that GCR 1963, 117(1), allows a defendant to move for summary judgment “at any time”. However, it is elear in this ease that the first motion for summary judgment was not denied absolutely, but only “until answer is filed”, so that it was entirely proper to renew the motion later. We have before us in the reeord three warrants for the arrest of Marvin Belt: one issued by Justice of the Peace Robert Anderson of Novi township, Oakland county, on July 12, 1962, upon complaint of defendant Lyle L. Stephens and with a recommendation for issuance of warrant signed by assistant prosecutor John O’Brien; one issued by Justice of the Peace Gordon W. Britten of Grass Lake township, Jaekson county, on October 24, 1963, upon complaint of defendant Elmer Neigebauer and with a recommendation for issuance of warrant signed by assistant prosecutor Hal W. Ziegler; and one issued from the bench by Justice of the Peace Britten on March 3, 1964, for contempt in failing to appear on trial date. The arrests or detentions complained of by plaintiff all appear to have been pursuant to one or another of these warrants. It has always been a principle of the eommon law that judges are immune from civil liability for their judicial acts, and this_ is well-established in Michigan. Mundy v. MoDonald (1921), 216 Mich 444. Our Court has recently extended to public prosecutors a similar immunity from suit for acts done in their official capacity. Bloss v. Williams (1968), 15 Mich App 228. . We find no Michigan ease which considers whether police officers should have a like immunity. White v. Towers (1951), 37 Cal 2d 727, 729 (235 P2d 209, 28 ALR2d 636). Annotation: Civil liability of law enforcement officers for malicious prosecution, 28 ALR2d 646. Comment: Malicious prosecution by public officers, 32 NC L Rev.360 (1954). Among the possible items of damage from malicious prosecution, Prosser lists harm to reputation and credit, humiliation and mental suffering, harm to health, loss of time due to arrest or necessary defense, the expenses of defense, and loss of employment, as well as the possibility of punitive damages. Prosser, Torts (3d ed), pp 869, 870. For similar evaluation of policy considerations, see 32 NO L Bev 360 (1954), and 23 Temp LQ 246 (1950). Although such a situation may seem hard to imagine, it is possible. See, e.g., Atkinson v. Birmingham (1922), 44 RI 123 (116 A 205, 36 ALR 366). When a poliee officer acts without eomplaint and warrant, the proper redress would be not an action for malicious prosecution, but one for false arrest or false imprisonment. It may be noted, however, that MPSC inspectors are given by statute “afi the powers conferred upon peace officers by the general laws of this state”, CL 1948, § 479.13 (Stat Ann § 22.578), so that their investigative authority is necessarily quite broad. In addition, the motor carrier act, as amended by PA 1957, No 173, defines “contract motor carrier of property” as one who transports property for hire, “either directly or through any device or arrangement”. CLS 1961,. § 475.1 (i) (Stat Ann 1969 Cum Supp § 22.531 [i]). This clearly contemplates that the MPSC, through its inspéctors, should have the authority to investigate and regulate lessors of trucks who use their lease operations as a “device or arrangement” to haul property for hire. The Attorney General of Michigan has so interpreted the statute in -an opinion: “I therefore advise that, in my opinion, inspectors appointed by the publie service commission have authority to enforce the provisions of the Michigan vehicle code and the motor carrier safety act, including enforcement of the latter against private not-for-hire carriers.” OAG 1959, No 3208; p 133, July 8, 1959. See, also, People v. Bissonette (1950), 327 Mich 349. See footnote 3,: supra.

T. M. Burns, J. The plaintiff was 12 years old when a collision with the defendant’s car which resulted in his injuries occurred at the intersection of Southfield and Austin in the City of Lincoln Park, Michigan. There is a dispute as to how the accident happened. Plaintiff claims to have been standing alongside his bicycle in the left turn lane waiting to cross the remainder of the street. The defendant claims the plaintiff rode out in front of him from the side street. The plaintiff contends that the trial judge committed reversible error by refusing to give an instruction that a 12-year-old plaintiff’s standard of care is to be measured by the standard of care of an ordinary child of similar age, experience, judgment, and physical and mental development. It first must be noted that, contrary to defendantappellee’s contention, the charge as to standard of care given by the trial judge was objected to by plaintiff’s counsel in a proper and timely manner. G-CR 1963, 516.2; 6 Callaghan, Michigan Pleading & Practice (2d ed), § 38.133. Therefore, the objection was preserved on the record and is properly before this Court. The trial court in instructing the jury as to the definition of negligence said: “Because the measure of care naturally varies in the different circumstances and the jury in each particular case has to establish from the testimony in the ease exactly the measure of care which should have been exercised under the circumstances and it is just that amount of care which would or should have been exercised by a man of ordinary intelligence and prudence. That is what we mean in law by the term negligence.” The court further instructed the jury as to the meaning of contributory negligence saying: “You can assume that it encompasses all the definition of negligence. * * * It is some omission on the part of the plaintiff which an ordinary prudent person would not have done or would not have left undone under the circumstances” Based on the above charge, it is defendant-appellee’s position that since the jury were told that they were to determine the standard of care, and that the jury both saw and heard the child and his testimony, that they necessarily took into account the minor plaintiff’s age, experience, judgment, physical and mental development. The trial judge took the same approach in his opinion after hearing argument for a motion for a new trial. The plaintiff contends that he was entitled to the child standard of care instruction. We agree. For as we said in DeNoyer v. City of Ann Arbor (1967), 9 Mich App 26, 29: “The due care of a child for its own safety must be measured by the care of the ordinary child of similar age, experience, judgment, and physical and mental development may be reasonably expected to observe under similar circumstances. Denman v. Youngblood (1953), 337 Mich 383.” When the plaintiff is an infant, the child standard of care instruction must be given. Harris v. Crawley (1912), 170 Mich 381; Denman v. Youngblood, supra, and cases cited therein; DeNoyer v. City of Ann Arbor, supra. ' We further find' that the statute commonly referred to as the bicycle act, MCLA § 257.657 (Stat Ann 1968 Rev § 9.2357) does not, as the trial judge suggested, change the responsibility of the trial court to give the special child standard of care instruction. The statute provides: “Every person riding, a bicycle, upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle” See Nielsen v. Henry H. Stevens, Inc. (1962), 368 Mich 216; Shafkind v. Kroll (1962), 367 Mich 42; Hart v. Warners (1961), 363 Mich 527. The statute does not purport to change the standard by which a child’s care is to be measured. It nierely imposes upon a bicyclist the so-called “rules of the road” which govern a driver’s rights and duties. We find that the trial court erred in its refusal to give an instruction which specifically directed that a child’s conduct should be measured by the-care the ordinary child of similar age, experience, judg ment and physical and mental development may he reasonably expected to observe under similar circumstances. As an additional ground for appeal the plaintiff alleges that the trial court erred in refusing to allow a newly discovered witness to testify. Since we are remanding for a new trial, this witness can be properly endorsed and subjected to discovery before the new trial, thus removing whatever objections the trial court might have had to the admission of his testimony. Since the issue has been mooted by our remand, we do not decide whether the trial court erred in its refusal to allow the witness to testify. Reversed and remanded for new trial. Costs to appellants. All concurred.

Per Curiam. Defendant asserts, he was deprived of a fair trial because the trial judge refused to permit a certain witness to be called in his behalf. Both prosecution and defense asked the trial court to exclude all witnesses before the taking of any testimony. ' The judge granted their-mutual request. The witness in question was an- iinindorsed witness who admitted hearing the command of the court excluding witnesses. It- appears ■ that she stayed in the courtroom and heard much of the testimony before defendant attempted to have her called in defense. We find no abuse of discretion on the part of the trial judge in refusing to permit the witness to take the stand. . ' . Defendant also contends that certain gnns were improperly admitted as evidence. A landlady testified there were no gnns on her premises before defendant became a roomer. However, after his arrival she found the guns and informed the police. The guns were admitted as evidence by the court. We find no error here since the guns were introduced to show that they were, or could be inferred to be,-in the possession of the defendant and were not essential to the establishment of a conspiracy. Deprivation of a constitutional right is asserted by defendant because a witness, who had testified at the preliminary, examination, refused to testify at the trial. The testimony of that witness at the preliminary examination was then read to the jury. The record discloses that defendant was represented by counsel at the preliminary examination and entered into extensive cross-examination of the witness at that time. The trial judge properly permitted the reading of the testimony on the preliminary examination given by this recalcitrant witness. CL 1948, § 768.26 (Stat Ann 1954 Rev § 28.1049); People v. Pickett (1954), 339 Mich 294. Conviction affirmed.

Fitzgerald, P. J. Plaintiffs’ action against defendant telephone company was for damages allegedly based upon negligence for failing to supply adequate service and using obsolete equipment. The lower court held the action was improperly started in circuit court because the remedy should have been pursued and exhausted at the administrative agency level prior to application for a hearing in a court of law. From this decision, plaintiff appeals. When a plaintiff has an action based upon negligence consisting of using obsolete equipment and providing inadequate service, is he required to pursue his remedy for damages at the agency level, or may he initiate such action in a circuit court ab initio¶ Plaintiff relies upon Muskegon Agency, Inc., v. General Telephone Company of Michigan (1954), 340 Mich 472, and a later decision of this same case (1957), 350 Mich 41. In Muskegon Agency, negligence consisted of putting a wrong number in a directory with attendant damages. The Court held that the public service commission was not a proper or constitutionally valid tribunal to decide the controversy after damage had been inflicted. Defendant argued, and the trial court held that these eases are distinguishable. In Muskegon Agency, the negligence and cause of action was complete. There were no statutory provisions which covered “wrong number” negligence and there was nothing left for the agency to hear or decide, since the damage had been done. Use of obsolete equipment and inadequate service are questions within the jurisdiction of the commission. MCLA § 484.103 (Stat Ann § 22.1443) provides that the commission is empowered to regulate any telephone service or facility. MCLA § 484.111 (Stat Ann § 22.1451) provides that the commission shall have authority to hear and determine all complaints against practices, or services rendered, or facilities furnished. The trial court, ruled that as long as there is a debatable issue which comes within the purview and the statutory delegated powers of the administrative agency, the commission has primary jurisdiction over such matters. Instigating an action at the circuit court level without prior recourse to the commission as provided by statute resulted in procedural defect. A hearing and decision on the merits was, as the court said, premature and unwarranted. However, in the instant case, we must consider the question of the innate inability of the administrative agency to grant the relief sought by plaintiff. Although there is no doubt that the doctrine of “primary jurisdiction” must here apply, we think the proceedings should be stayed pending a determination by the administrative body. As is stated in 3 Davis, Administrative Law, § 19.07, p 42: “[W]hen the agency cannot grant thé relief prayed, so that further resort to the court is probable, the proceeding should be stayed.” In the case of Thompson v. Texas Mexican Railway Co. (1946), 328 US 134 (66 S Ct 937, 90 L Ed 1132), the Texas state courts held that plaintiff was entitled to relief which the Interstate Commerce Commission could not give and the United States Supreme Court ordered that the ease be “held pending .the conclusion of appropriate administrative proceedings.” (See, also, General American Tank Car Corp. v. El Dorado Terminal Co. [1940], 308 US 422 [60 S Ct 325, 84 L Ed 361].) In light of these authorities, we hereby remand this case to the circuit court with instructions to stay the proceedings pending a determination, by the public service commission of the questions in volved, upon remand to that agency by the circuit court. We do not retain jurisdiction of this matter. No costs, a public question. All concurred.

R. B. Burns, J. Defendant’s zoning board, after a public hearing, approved plaintiffs’ petition to change the zoning of plaintiffs’- property to permit its development as a mobile home park, and adopted an amendment to the zoning code changing the zoning of the property from residential suburban agricultural (RSA) to residential urban (RU-3). The zoning change was also approved by the Genesee county coordinating committee, but in a referendum the majority of electors of the township disapproved of the change and repealed the amendment. Suit was then filed by plaintiffs to have the zoning ordinance declared unconstitutional as applied to their property. Plaintiffs moved under GCR 1963, 117.2(3), for summary judgment on the theory that the admissions contained in the pleadings, the undisputed facts in the affidavits, the stipulated exhibits, and the actual view of the premises taken as part of the record by the trial court, required disposal of the action in their favor. It was plaintiffs’ further position that any facts in dispute, even if resolved in favor of defendant, were not material to, nor in conflict with, plaintiffs’ claim. The trial court granted the motion but allowed defendant time to file further affidavits to etablish that the ordinance as applied to plaintiffs’ property had some relationship to the public health, safety, morals, or general welfare, or to establish some factual issues upon which such a relationship could be inferred. After receiving further affidavits the trial court concluded the motion must be granted and denied rehearing. Defendant appeals, arguing that there were material issues of fact in dispute and a summary judgment could not as a matter of law be granted. The undisputed facts were: 1. For the past 25 years the land has been used for grazing purposes and is not suitable for general crop farming but may be suitable for specialized farming. 2. Immediately adjacent on the north is a commercial gravel pit using heavy machinery and causing noise and dust during spring, summer and fall. 3. Adjacent on the east across the Flint river in full view of the property, Genesee county is engaged in building a sewage treatment facility. 4. Adjacent on the west and south is a commercial orchard. 5. The land is not suitable as a commercial orchard as it is not on a highway so as to generate the sale of products. 6. The surrounding land is vacant and unused for farming and/or building purposes except along the river flats. 7. Limited access prevents F.H.A. and other governmental insured loans for housing construction and the financing of completed homes from being available. 8. The value of the property as a single home site is $10,000 to $15,000, whereas the value as a mobile home park would be $90,000. 9. The township has plenty of land available for housing. 10. The zoning ordinance did not provide land for new trailer parks.. The purpose of a motion for summary judgment is to determine whether the facts essential to a rendition of a judgment on the claim are undisputed; If so, the question can be disposed of without the necessity of a trial on the merits. Even when some factual disputes are present, summary judgment may be granted if the resolution of these facts in favor of the party opposing the motion does not alter the controlling legal question. General Motors Corporation v. City of Detroit, (1964), 372 Mich 234. As stated' in Davis v. Kramer Bros. Freight Lines, Inc. (1964), 373 Mich 594, 597, “The question, however, is whether those fact issues were material to the controlling legal principle and to the ground upon which summary judgment was granted,” The controlling legal principle in zoning matters is that for ap ordinance restricting an owner’s use of his property to be valid it must bear a real and substantial relationship to the public health, . safety, morals or general welfare. The trial court granted the motion on the basis that the undisputed facts showed the absence of such a relationship, and said: “It is sufficient to say that this property is undeveloped and surrounded by undeveloped property in a sparsely populated township with a gravel pit operation to the north of the subject property and a commercial orchard to the southwest and south. There are no residences adjacent to the property and only isolated ones at some distance.” There is a clear line of cases in' Michigan that have held that prohibiting trailer parks from undeveloped areas is unreasonable. See Gust v. Township of Canton (1955) 342 Mich 436; Smith v. Plymouth Township Building Inspector (1956), 346 Mich 57; Clark v. Lyon Township Clerk (1957), 348 Mich 173. As Justice Black said in Clark, supra: “[I]t is evident from the present nature and characteristics of Lyon township and particularly the area of farmland surrounding plaintiffs’ tract that the defensively pleaded ordinance does not validly restrict use of said tract to ‘farming, agricultural, and/or residential purposes.’ The facts to which we have alluded overcome the presumption of validity of presently attempted ordinance application and we are referred to no fact or circumstance on which it may be said that public health, safety, morals, or general welfare in the mentioned area will be affected, adversely or otherwise.” (Emphasis supplied.) Defendant claims basically that the questions of whether residences could be built on the property and whether other land was available for trailer park use in the township were material fact issues that should have prevented the granting of the motion for summary judgment. But even resolving such factual issues in defendant’s favor would not preclude a judgment in plaintiffs’ favor. On the admitted facts the posture of this case fits the following statement: “Art ordinance which prohibits such use of land which is classified for residential use hut is in fact farmland so situated that mobile homes cannot adversely affect anyone is unreasonable and arbitrary” 2 Anderson, American Law of Zoning, § 11.52 at p 374. It was incumbent upon defendant to at least show some facts from which a relationship between the zoning of the property and the proper exercise of police power could be inferred. Defendant failed to show such facts. Compare June v. City of Lincoln Park (1960), 361 Mich 95. In addition, the trial court’s personal observation of the property in question was made a part of the record and its conclusions upon such observation are highly valued. The motion was properly granted. Affirmed. Costs to plaintiffs. All concurred.

V. J. Brennan, J. Defendant, Eddie Edwards, was charged with felonious assault and tried before a Kent county circuit judge sitting without a jury. Shortly before the trial began, defendant requested the court to appoint different counsel as he was dissatisfied with his court-appointed attorney’s preparation for trial. The trial court inquired into the possible causes of his discontent, found none of merit, and told defendant that his attorney was capable of conducting an adequate defense. The trial court also informed defendant that he could either dismiss his attorney and defend himself, or he could continue with said counsel. Counsel remained and defended Edwards without his objection. The judge found Edwards guilty and subsequently sentenced him to a term of 2-1/2 to 4 years. An associate of the court-appointed attorney represented Edwards during the sentencing proceeding, as the court-appointed attorney had fallen seriously ill. Edwards did not object to the substitution. On appeal Edwards assigns as error an alleged refusal by the trial court to permit him to choose between continuing with the appointed attorney and defending himself. This allegation is unfounded. The record does not disclose an unwillingness on the trial court’s part to permit a defense in propria persona, nor does it contain an expression by defendant of a desire to represent himself. Aware of the alternatives open to him, defendant had sufficient opportunity, before the trial began to make his decision known, or, if he was undecided, to communicate his indecision to the court. Defendant also contends the trial court erred by denying his request for a different attorney, although he does not maintain that his trial counsel was incompetent. The right to assigned counsel does not extend to counsel of the indigent defendant’s own choosing. People v. LaMarr (1965), 1 Mich App 389. Therefore the denial of appellant’s request does not constitute error. Defendant seeks to be resentenced, claiming he was denied due process of law by reason of his trial counsel’s absence during the sentencing proceeding. The indigent defendant is entitled to the benefit of effective appointed counsel at the sentencing proceeding. People v. Dye (1967), 6 Mich App 217; People v. Theodorou (1968), 10 Mich App 409. The effectiveness of counsel’s assistance at the sentencing proceeding is not determined, however, by his participation at-the trial. Thus the substitution of the associate does not ipso, facto constitute a denial of the right to counsel. A need for resentencing is not apparent here. Defendant does not contend that the substitute was incompetent or unprepared. Moreover, the trial court inquired into the existence of mitigating circumstances, and defendant was responsive to the questioning. Affirmed. All concurred.

Per Curiam. This case is submitted on the People’s motion to dismiss or affirm. Defendant was convicted, on a plea of guilty, of the crime of second degree murder (MCLA § 750.317 [Stat Ann 1954 Rev § 28.549]), and on July 1, 1968, he was sentenced to serve 50 to 60 years in prison. On February 11, 1969, defendant’s motion to withdraw the plea of guilty and set aside the conviction was denied. Appellate counsel was requested and a timely appeal was filed alleging that the court failed to comply with GCR 1963, 785.3(2), and that the sentence was excessive, constituting cruel and unjust punishment. A complete review of the transcript of the plea examination discloses that the court committed .no error in accepting the guilty plea, which was freely, understandingly and voluntarily made by the defendant after he had been examined by three psychiatrists and found to be legally sane. The court personally examined defendant on the record and was satisfied that a crime of second degree murder had been established and defendant had participated therein. This examination was consistent with MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058), GCR 1963, 785.3(2), and People v. Barrows (1959), 358 Mich 267. Since defendant was represented by-counsel, GCR 1963, 785.3(1) has no application. People v. La Roe (1969), 18 Mich App 262. There has been no miscarriage of justice. People v. Dunn (1968), 380 Mich 693, and People v. Winegar (1968), 380 Mich 719. In addition, the transcript discloses the court fully complied with the guilty plea requirements set forth by the United States Supreme Court in Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274); see also McCarthy v. United States (1969), 394 US 459 (89 S Ct 1166, 22 L Ed 2d 418). Defendant’s assertion that the sentence of 50 to 60 years constitutes an abuse of discretion and cruel and unusual punishment will not ordinarily be reviewed by an appellate court when the sentence imposed falls within the statutory limits set by the legislature, as in this case which involves a maximum of life imprisonment. MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). See People v. O’Den (1968), 15 Mich App 10, 11; People v. Tetts (1967), 6 Mich App 254, 259; People v. Pate (1965), 2 Mich App 66, 68; and see also People v. Krum (1965), 374 Mich 356, 362; and People v. Connor (1957), 348 Mich 456, 463. The case of People v. Murray (1888), 72 Mich 10, upon which defendant relies, is no longer applicable as it was decided when Michigan did not have an indeterminate sentence law and the defendant was required to serve whatever sentence was imposed unless pardoned. See People v. Earegood (1968), 12 Mich App 256, 274. Motion to affirm is granted.

Cynar, J. On June 6, 1967, Dean Monagin, Inc. executed an assignment to Daniel N. Pevos as assignee for the benefit of creditors of said corporation, whereby the assignor did grant, bargain and sell unto the assignee all of assignor’s property not exempt from execution. On June 19, 1967, the assignee filed a petition for an order to show cause to be heard on June 26, 1967, why property identified in the inventory and appraised as Northwest model 41 backhoe serial #20328 (1958) poor bottom, 1 yd. bucket, Murphy Model #2 Diesel, approximate cost $50,000 appraised value $11,500 on which property Larson Company claimed a lien, should not be sold at a public auction on July 8, 1967, and the lien or claim of liens of creditor be transferred to proceeds of sale. Although the Larson Company did have notice of the June 26, 1967, hearing date for the show cause proceeding, it failed to appear for the hearing. The Oakland County Circuit Court on June 26, 1967, ordered the claimed lien of the Larson Company transferred to proceeds of a proposed auction sale. The said property was sold for $8,800 at a public auction on July 8, 1967. On August 3,1967, the Larson Company filed with the circuit court a proof of claim listing a claim in the amount of $11,755, the debt being contracted April 23, 1965, which was secured by a chattel mortgage and series of notes. The chattel mortgage dated April 23, 1965, and filed with the Oakland county register of deeds on April 26, 1965, identified and warranted the following property as free and clear from all liens: 1 — Northwest model 41 pull shovel #20328-19309P Eng. #20692 The chattel mortgage recites a debt of $12,000 to be paid off in monthly installments from May through December, 1965. On November 27, 1967, the assignee filed a notice of hearing for December 19, 1967, on its objection to the claim of the Larson Company, contending the claim should be treated as an unsecured claim. At the show cause hearing on December 19, 1967, the assignee, in support of its position, stated that the Larson Company filed a claim in the amount $11,755 claiming a chattel mortgage as security. The Larson Company was notified that a hearing would take place to determine why its lien, if any, should not be transferred to the proceeds of an auction sale on or about July 10, 1967. The Larson Company did not appear for the hearing, and the shovel was sold for $8,800. The assignee Pevos contended that the lien was invalid under MCLA § 440.9301 (Stat Ann 1964 Rev § 19.9301[2]) because an imperfected security interest is subordinate to the rights of another lien creditor without knowledge of the security interest and before it is perfected. MCLA § 440.9301 (Stat Ann 1964 Rev § 19.9301 [3]), the assignee for the benefit of creditors herein was such a lien creditor and, unless all the creditors represented had knowledge of the security interest, such a representative of creditors is a lien creditor without knowledge. Pursuant to MCLA § 440.9401 (Stat Ann 1964 Rev § 19-.9401), the proper place to file to perfect the security instrument was with the office of the Secretary of State; and since this was not done on June 6, 1967, the lien is invalid and the claim is unsecured. The Larson Company argued that its claim was a continuing claim which existed prior to the passage of the Uniform Commercial Code (PA 1962, No 174). The claim originated in 1955 and was on a continuing basis from 1955 to the time of the assignment for the benefit of creditors. Further, from 1955 until 1965, there was notice to all creditors; and the Larson Company had a valid and existing claim against the property covered by the chattel mortgage. Further, based on § 9402 of the Uniform Commercial Code (MCLA § 440.9402 [Stat Ann 1964 Rev § 19.9402]), a filing made in good faith in an improper place or not in all places required by this section was still effective to protect the Larson Company as a secured creditor. The court ruled that the chattel mortgage was a new mortgage, that a filing with the Secretary of State pursuant to the new act was required, and since this was not done, the claim was unsecured. The February 5, 1968, order of the court provided that the security instrument had not been properly perfected pursuant to MCLA § 440.9401 (Stat Ann 1964 Rev § 19.9401) and the assignee was a lien creditor whose rights were superior to an imperfected security instrument pursuant to MCLA § 440-.9301 (Stat Ann 1964 Rev § 19.9301[3]). The proof of claim filed on August 3, 1967, in behalf of the Larson Company alleges the debt was contracted on April 23, 1965, and there is no contrary proof or argument to explain the claimant’s own sworn proof of claim. The chattel mortgage involved herein, after the closest scrutiny, fails to support the claimant in its argument that the claim was a continuing claim from a date prior to the adoption of the Uniform Commercial Code in Michigan, which date was January 1, 1964, MCLA § 440-.9991 (Stat Ann 1964 Rev § 19.9991). On the date the chattel mortgage was executed and recorded with the Office of the Register of Deeds, MCLA § 440.9401 (Stat Ann 1964 Rev § 19-.9401) provided as follows: “(1) The proper place to file in order to perfect a security interest is as follows: # * # “(d) in all other cases, in the office of the secretary of state.” Filing with the Office of the Secretary of State was requisite to the perfection of a security interest alleged by the appellant. No security agreement was filed with the Office of the Secretary of State. Appellant contends that a filing made in good faith in an improper place is still effective to protect the Larson Company as a secured creditor. MCLA §440.9401 (Stat Ann 1964 Rev §19.9401[2]) provides as follows: “(2) A filing which is made in good faith in an improper place or not in all of the places required by this section is nevertheless effective with regard to any collateral as to which the filing complied with the requirements of this article and is also effective with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement.” It would appear under subsection (2) that, if the security instrument covered several types of collateral requiring different filing procedures, the security interest would be perfected with respect to the collateral against which the filing is proper, but unperfected as against the collateral which required another place of filing. In this matter, failure to file with the Secretary of State and recording of the chattel mortgage in the county was not sufficient to perfect the security instrument. MCLA § 440.9301 (Stat Ann 1964 Rev § 19.9301) provides: “(1) Except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of # * # “(b) a person who becomes a lien creditor without knowledge of the security interest and before it is perfected; * * * “(3) A lien creditor’ means a creditor who has acquired a lien on the property involved by attachment, levy or the like and includes an assignee for benefit of creditors from the time of assignment, and a trustee in bankruptcy from the date of the filing of the petition or a receiver in equity from the time of appointment. Unless all the creditors represented had knowledge of the security interests such a rep resentative of creditors is a lien creditor without knowledge even though he personally has knowledge of the security interest.” The appellant having an unperfected security interest is subordinate to the lien creditor; the assignee for the benefit of creditors. The trial court correctly held that the claim of the Larson Company was unsecured. Affirmed with costs to appellee. All concurred.

V. J. Brennan, J. This is an appeal from an order of superintending control over Judge John W. Connolly of the common pleas court for the city of Detroit, directing him to vacate an order which reinstated a certain replevin action dismissed for lack of progress. The events preceding the order of superintending control may be related as follows: On November 15, 1967, Sears, Roebuck & Co. instituted a replevin action against plaintiff, Richard Emahiser, in the common pleas court for the city of Detroit. A writ of replevin was issued and the bailiff took possession of a television-phonograph console from Emahiser. The replevin proceedings were dismissed on December 7, 1967, for lack of progress as neither Emahiser nor Sears, Roebuck & Co. took further action. Emahiser had téléphoned the credit department of Sears, and upon being told that he would have to pay the balance owing on the console plus $48.00 in costs and attorney fees, he informed Sears that they could “keep the merchandise”. Peeling that Emahiser had waived any right in the console, Sears decided not to pursue a judgment on the writ. On January 11, 1968, Emahiser and his wife brought suit against Sears, Roebuck & Co. and its attorney, William J. DeBiase, in Wayne county circuit court, seeking $1,150.00 as damages for the wrongful seizure of the console. On March 4, 1968, Sears, Roebuck & Co. filed a motion to reinstate the replevin proceedings in the common pleas court. On March 18, 1968, Judge Connolly granted the motion to reinstate pursuant to common pleas court rule 16, § 2 (as amended March 18, 1968). In response to this grant, Emahiser filed a complaint in Wayne county circuit court seeking the order of superintending control from which this appeal is taken. Emahiser contended that retroactive application of common pleas rule 16, as amended, is beyond the court’s jurisdiction and, alternatively, that Judge Connolly erred in ruling that good cause for reinstatement had been shown. At the time of the dismissal of the replevin action for lack of progress, common pleas rule 16 did not allow for reinstatement once dismissal had been ordered. This rule was subsequently amended, however, to provide: “Sec. 2. An action dismissed for lack of progress may be reinstated in conformity with the provisions of this rule by the Presiding Judge upon good cause shown. :;“Sec. 4. An action may not be reinstated more than- once, or after the elapse of six months from the date of the dismissal thereof.” The motion to reinstate was made well within the 6-month limitation of § 4. Perhaps fortuitously, the effective date of these amendments coincided with the day on which plaintiff’s motion was heard. The issue presented by the reinstatement is twofold: Can rule 16, as amended, be applied to an action dismissed at a time when reinstatement was not permitted, and if it can, did Judge Connolly abuse his discretion in holding that “good cause” for reinstatement was shown? Directing attention to the first aspect, the power of the common pleas court to promulgate rules of procedure is unquestioned. CL 1948, § 728.17 (Stat Ann 1962 Rev § 27.3667) provides in part: “* * * Such judges shall prescribe the form of ,all summons, writs and other process to be issued by such court and may adopt rules not inconsistent with the other provisions of this act governing the time and manner of filing and serving pleading and the form thereof, the dismissal and adjournment of causes, the entry and setting aside of defaults and default judgments, the extension of time for pleading, and all other matters of pleading, practice, and procedure not inconsistent with the provisions of this act.” The difficulty lies in the determination whether the pending matter is to be governed procedurally by the newly promulgated rule or, when the rules conflict, by the superseded rule in effect at the commencement of the action. GrCR 1963,14 affords certain guidance in resolving this problem: “These rules will take effect on January 1, 1963. They govern all proceedings in actions brought after that date and also all further proceedings in actions then pending except to the extent that in the opinion of the court their application in a particular action pending when the rules take effect would not be feasible, or would work injustice, in which event, the former procedure applies.” The newly devised rule, or amendment, is thus prima facie applicable. The former rule governs only if the use of the new rule would work an injustice or is not feasible. With this standard in mind, we hold that rule 16, as amended, is applicable. The interest protected by the dismissal for lack, of' progress is insignificant when contrasted to the countervailing policy that the controversy be adjudicated on its merits. See the separate opinion of Dethmers, Kelly and O’Hara, JJ. in Walters v. Arenac Circuit Judge (1966), 377 Mich 37. This contrast is especially striking when, as here, the rule allows reinstatement only within a 6-month period after dismissal (and then only for good cause), and the reinstatement is granted within that period.. It is apparent that no injustice has been worked by the application of the amended rule. Eule 16, as amended,'permits reinstatement upon “good cause shown.” Judge Connolly found that Sears, Eoebuck & Co, was justified in. relying on Emahiser’s statement and believing that he had waived his rights in the console. He accordingly ruled that good cause had been shown. We are unable to say that Judge ■ Connolly abused his discretion. Order of superintending control is hereby vacated; Common pleas order to reinstate proceedings is hereby affirmed. Costs to defendant. All concurred. MOLA § 600.615 (Stat Ann 1962 Rev § 27A.615); GCR 1963, 711.

Per Curiam. Defendant Enrique Acea Rosell was charged with having committed the act of sodomy in violation of MCLA § 750.158 (Stat Ann 1962 Rev § 28.355), in 1966 in the city of Detroit. He was tried by the court without a jury on October 6, 1967, and found guilty. The appeal tests the sufficiency of the evidence for a finding of guilty beyond a reasonable doubt. The people file a motion to affirm the conviction. A review of defendant’s brief, the motion to affirm, and the record discloses sufficient evidence to sustain the conviction, if such testimony were believed by the trial court. Accordingly, the motion to affirm is granted.

R. B. Burns, J. This case arose out of an accident that occurred at approximately 4:30 p.m. at the intersection of Hill and Fenton roads in Genesee county, in which plaintiff’s decedent sustained fatal injuries. Defendant Rauch, a police officer employed by defendant township, responding to a radio call that a motor vehicle had gone over an embankment at Hill and 1-75, was proceeding west on Hill road in his police cruiser with siren, flashers and headlights in operation. As defendant approached the intersection, plaintiff’s decedent, along with a passenger and. a companion motorcyclist, traveling at the maximum legal.rate of 45 miles per hour was approaching the intersection from the north on Fenton road. Defendant Bauch testified that when he reached the intersection two motor vehicles had stopped at the northerly side of Hill road immediately before the intersection, he slowed down, pulled up to them and stopped before proceeding into the intersection. The other witnesses generally agreed with this testimony but all testified, contrary to defendant’s testimony, that the traffic light was red for Hill road traffic, green for Fenton road traffic. Defendant drove into the intersection without seeing the motorcyclists who had continued at 45 miles per hour through the green light into the intersection. Decedent’s motorcycle struck the police cruiser on the right side at a point in the intersection on the west side of the center line of Fenton road. (There was testimony to the effect that the police cruiser had “lunged” or “gone quickly” into the intersection.) Plaintiff sued defendants on the theory of negligence, but during the trial the complaint was amended pursuant to GOB 1963, 118.3 to incorporate the doctrine of discovered peril as an alternative theory. (Discovered peril is also known variously as the last clear chance doctrine, the humanitarian rule, discovered negligence, reckless negligence or gross negligence. See LaCroix v. Grand Trunk Western R. Co. [1967], 379 Mich 417.) The difference between the two theories is basically that, in the latter, it is assumed plaintiff is in some way contributorily negligent, which would ordinarily defeat the action, but despite this contributory negligence the plaintiff is allowed to recover if defendant’s negligence was the proximate cause of the injury. Defense counsel objected then, and does so now on appeal, to the interjection of this theory of liability. However, the cause was sub mitted for jury consideration with instructions on both theories and a verdict was returned for plaintiff. The basis for defendants’ argument that the discovered peril doctrine is inapplicable to the present factual situation is their contention that plaintiff’s decedent was negligent in failing to slow down or respond to the siren or lights of the police cruiser and this negligence was concurrent with any negligence by defendant and continued up to the point of impact. In other words, it is not possible from the facts to say that defendant’s conduct was the proximate cause of the accident. They cite the following quotation from Shafkind v. Kroll (1962), 367 Mich 42: “The fact is that the plaintiff rider and the defendant motorist, each blindly, pursued and continued to pursue what men of the sea call 'a collision course.’ There was, in such circumstances, no room for jury consideration of the discovered negligence rule.” We note, however, that this paragraph concluded with: - “In sum, there is no proof or fair inference from proof that there was sufficient time and sufficient distance allotted for preventive action by defendant * * * .” As was stated in Dunn v. City of Detroit (1957), 349 Mich 228: “The difficulty is not so much with the rule as with its applicability — as a matter of law — to the facts of the particular case. The question resolves itself into one of determination of proximate cause or causes, and such is usually one of fact for the trier or driers of fact (1 Cooley on Torts (4th ed), §50, pp 120, 121; Prosser on Torts (2d ed), §50, p 281; Spencer v. Phillips & Taylor, 219 Mich 353; Beebe v. Hannett, 224 Mich 88; Arvo v. Delta Hardware Co., 231 Mich 488). Determination thereof by such trier or triers always depends on receipt of proof tending directly or by proper inference to show that the defendant did discover, or by' the exercise of ordinary care should have discovered, that the plaintiff was helpless to avoid the impending harm, and that such discovery was made or should have been made in time to avoid such harm by means at hand. Invariably, the question involves fact elements of time and distance. Where, as here, allotted time and distance unite- in providing that interval which reasonably calls for comprehension and preventive action, the doctrine rightfully comes into play for jury consideration.” Under the facts of this case it was particularly apt for the jury to determine whose negligence was the proximate cause of the accident. There was evidence from defendant Rauch’s own testimony, if believed by the jury, that he stopped at the intersection. Before he left this position of safety, he had only to loot and observe the motorcycles to determine their speed and if they were attempting to stop, something he was legally bound and. physically able to do. If he looked, as he stated, it is reasonable to infer that he failed to see what was there to be seen. It is also logical to infer that if decedent did see the cruiser stopped at the intersection he could have assumed it would remain stopped until the motorcycles had gone through the intersection on the green light. Assuming further that decedent was negligent, it was a jury question whether or not this negligence ceased to operate as an efficient cause of the accident, that is, whether he was in a position of helpless peril. The facts were sufficient for the jury to find “there was suffi- cient time and sufficient distance allotted for preventive action by defendant.” Shafkind, supra. The theory of discovered peril was properly submitted to the jury. Affirmed. Costs to plaintiff. All concurred.

V. J. Brennan, J. Defendant was convicted of placing explosives with intent to destroy and causing damage to property (CL 1948, § 750.206 [Stat Ann 1962 Rev § 28.403]) and sentenced to a prison term of 4-1/2 to 25 years, the latter period being the maximum punishment under CL 1948, § 750.206. Defendant’s alibi witness testified that defendant was at her home when the bombing in question occurred. On examination by the prosecution, the witness denied that she had told a police officer on a previous occasion, that defendant had left her home just prior to the explosion with dynamite in his possession. The prosecution then called the police officer who testified as to the prior, inconsistent statements of the alihi witness. Although the testimony of the police officer was properly admitted, the trial judge failed to instruct the jury that it could be considered only for purposes of impeaching the credibility of the alibi witness, and not as substantive proof of guilt. As this testimony tended to connect defendant directly with the placing of the bomb, and the people’s case was otherwise based solely on circumstantial evidence, the failure to give a cautionary instruction is reversible error even though one was not requested. People v. Durkee (1963), 369 Mich 618; People v. Eagger (1966), 4 Mich App 449. Defendant also contends he was sentenced under the wrong statute. Although this question may seem unnecessary to discuss because of our aforementioned ruling, we do so as the matter is remanded for trial and the trial court may be required again to face the issue. There was no direct evidence that Bodgers was present at the scene of the bombing. Nevertheless if the jury found from the circumstantial evidence presented that he placed the bomb, the 25-year sentence of CL 1948, § 750.206 could properly be imposed. However, if the jury found that Bodgers did not place the bomb, but merely aided and abetted, he could not be sentenced to the 25-year term under CL 1948, § 750.206. CL 1948, § 750.208 (Stat Ann 1962 Bev § 28.405) makes unlawful the aiding or'abetting of a person who places an explosive with intent to destroy the property of another. This felony is punishable by a maximum of 15 years in prison. The appellee contends application of CL 1948, § 750.206 is nevertheless proper as it was sufficiently established that defendant aided and abetted the person who placed the bomb, and accessories are criminally liable as principals by force of CL 1948, § 767.39 [Stat Ann 1954 Bev § 28.979]. It is a basic rule of statutory construction that a special statute, specific in its language and enacted subsequent to its more general counterpart, constitutes an exception to the general regulation should there be a variance. See Winter v. Royal Oak City Manager (1947), 317 Mich 259, 265; Dewey v. Central Car and Manufacturing Company (1880), 42 Mich 399. CL 1948, § 750.208 specifically covers aiding and abetting in the placing of explosives and was enacted after CL 1948, § 767.39. Therefore the distinction between accessory and principal is maintained as concerns the several crimes involving the placing of explosives. (CL 1948, § 750.205, et seq.) Appellee points out that CL 1948, § 750.206 requires actual damage to property whereas CL 1948, § 750.208 does not. Prom this reading, they conclude that the latter section does not proscribe aiding and abetting in the violation of CL 1948, § 750-.206, but instead makes aiding and abetting unlawful only where no damage occurs, a separate offense from that of CL 1948, § 750.206. Since damage occurred here, CL 1948, § 750.208 is not applicable. This position is untenable. Section 206 is only one part of a statutory scheme which also makes unlawful the placing of an explosive “although no damage is done,” and placing where injury to person is suffered. Section 208, the only section in this scheme which addresses itself to aiding and abetting, is not expressly limited to situations where no damage occurs; indeed, it makes no reference to the effects of the explosion. Since application of §§ 206 and 207 depends on the effect of the explosion, and § 205 makes placing unlawful “although no damage is done,” a section which makes aiding and abetting in the commission of any one of these principal offenses unlawful, is reasonably worded without repetition of the distinguishing features. It is not plausible to think that § 208 was designed to single out § 205 to the exclusion of the latter’s companions. If defendant’s acts were limited to aiding and abetting, the liability of a principal cannot properly be imposed upon him in this case because of the specific statute. Reversed and remanded. All concurred. See 3 Wigmore on Evidence (3d ed), § 1018. OL 1948, § 767.39 was originally enacted as PA 1855, No 77, while CL 1948, § 750.208 was enacted as PA 1927, No 119, § 5. OL 1948, § 750.205 (Stat Ann 1962 Roy § 28.402). CL 1948, § 750.207 (Stat Ann 1962 Eev § 28.404).

Per Curiam. At trial and on this appeal the plaintiff objected to the introduction of evidence by the defendant in support of a defense of failure of consideration. This defense had not been affirmatively pleaded by the defendant as required by GCR 1963, 111.7 and Rule 9.4 of the rules of the Common Pleas Court of Detroit. The plaintiff argued that since such defense had not been pleaded it was waived. G-CR 1963, 111.3. Plaintiff commenced this action for nonpayment of a nonnegotiable note. The authenticity of the note is not in issue. Although the note does not clearly express the consideration for its issuance, the amount due is $2,500. At trial, after the plaintiff had presented his proofs and rested, the defendant made a motion to dismiss raising for the first time the issue of failure of consideration. This motion was denied by the trial court consistent with its finding that plaintiff had established a prima facie case. Defendant then made a motion to amend his pleadings to include several affirmative defenses, one of which was failure of consideration. The trial court took this motion under advisement and ruled that the defendant should proceed with his proofs presenting evidence in support of such affirmative defenses on a separate record. The plaintiff then took the stand for further testimony, after having been called by the defendant for cross-examination as an adverse witness, on the issue of failure of consideration. At the conclusion of his testimony, the defendant moved to dismiss the plaintiff’s complaint primarily on the basis that there was a failure of consideration. The trial court at this point found that there was a failure of consideration. It also ruled that plaintiff would not be given an opportunity to rebut defendant’s proofs. Subsequently, the trial court entered a judgment of no cause of action. A motion for new trial was denied. A trial judge may allow amendments to pleadings during the trial, but if be does so be must afford the opposing party an adequate opportunity to meet the newly injected issue. See GrCB 1963, 118.3 and Bules 11.2 and 39 of the rules of the Common Pleas Court of Detroit. In this case the trial judge erred in denying the plaintiff an opportunity to put in rebutting proofs on the issue of failure of consideration. Beversed and remanded for a new trial. Costs to plaintiff.

Danhof, J. Plaintiff sued defendant, city of East Tawas, for damages arising from the loss of an eye resulting from an explosion while he was at the East Tawas municipal dump on December 4, 1965. The claim was originally based upon negligence, but additional counts of gross negligence and nuisance were later added. The defendant filed a motion for an accelerated judgment asserting that PA 1964, No 170, § 7 (MCLA § 691.1407 [Stat Ann 1969 Cum Supp § 3.996(107)]), relative to governmental immunity, bars the cause of action. The circuit judge denied the defendant’s motion stating that the aforesaid § 7 was unconstitutional as it did not fall within the object embraced in the title of the act and, therefore, defendant was not immune from such suit. The case proceeded to a jury trial solely on the theory of nuisance, after plaintiff voluntarily struck his allegations of negligence and gross negligence from the complaint, and a verdict was rendered in favor of plaintiff in the amount of $12,500, plus costs. From this judgment defendant appealed, alleging the trial court erred in ruling that defendant was not immune from suit. In addition, the plaintiff filed a motion for a new trial alleging the verdict was grossly inadequate and from the denial of his motion, the plaintiff appealed. Subsequently, the two appeals were consolidated. On appeal, the first question to he answered is whether plaintiff’s nuisance suit was well-founded. The city argues that plaintiff’s cause of action was founded upon nothing more than negligence in the operation of its dump, and that such cause of action was barred by PA 1964, No 170, § 7. In support of this position defendant points out that plaintiff initially claimed ordinary negligence in his complaint, then by amendment added gross negligence and nuisance, later voluntarily abandoning- the negligence theories and proceeding to trial on a nuisance theory only — all without change in the allegations. As authority the defendant cites Royston v. City of Charlotte (1936), 278 Mich 255, 260, where the court enunciates the following legal proposition: “Acts in the discharge of governmental functions which create a nuisance per se do not come within the immunity otherwise accorded. Want of care in maintenance, however, presents the question of negligence only, and not that of a public nuisance, which must rest on inherent danger even under the best of care.” Since the Royston Case, supra, we have the case of Denny v. Garavaglia (1952), 333 Mich 317, which clearly recognizes three categories of nuisance, the last one based on negligence. At p 331 the Court quoted from Beckwith v. Town of Stratford (1942), 129 Conn 506 (29 A2d 775), wherein the court had occasion to discuss the elements constituting nuisances. The quotation follows: “ ‘Apart from nuisances which have their origin in accident, nuisances resulting in personal injury fall into three general classes. Beven, Negligence (4th ed), p 426, note. One class includes nuisances which result from conduct which is in itself a violation of law, and as to them it has been held on high authority that contributory negligence is not a defense, Delaney v. Philhern Realty Holding Corporation (1939), 280 NY 461, 465 (21 NE2d 507); but with such nuisances we have no concern in this case. A second includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance. The other class includes nuisances which have their origin in negligence, which in its essence is an absence of care. Nuisances falling in the second class are those which we characterize as absolute and against which contributory negligence is not a defense. To hold that contributory negligence should not be a defense as regards them and should be as to the last class of nuisances rests upon the essential difference in the nature of the wrong committed. Negligence consists in a failure to exercise due care, and to a nuisance grounded on negligence, contributory negligence is for that reason an appropriate defense. Winfield, Torts, p 501. Where, however, the essence of the wrong is conduct which is intentional, in the sense in which we have used that word, that conduct goes beyond a mere lack of proper care, and there is not the same balance of obligation between the duty of one person to guard another from an injury from such a lack and the duty of the other not to fail to exercise a like care in his own protection. See Bohlen, Studies in the Law of Torts, p 527. The fact that contributory negligence is not a defense as against reckless mis conduct presents a somewhat analogous situation.’ ” (Citations omitted.) The Court in the Denny Case then held: “The record supports the finding of the trial court that the nuisance was created through acts of negligence on the part of Garavaglia.” Again in the case of Dahl v. Glover (1956), 344 Mich 639, 644, 645, the Court recognized that a nuisance might have its origin in negligence for the Court said: “We are not in accord with appellant’s claim that the court erred in charging the jury that they might find the maintaining of a nuisance created by negligence; or that the court ‘improperly injected [the question of negligence] into the case.’ The court charged the jury that a nuisance might have its origin in negligence, and charged that if the jury so found, contributory negligence would be a good defense which the jury must consider. “The charge as a whole was proper. Denny v. Garavaglia (1952), 333 Mich 317; Brown v. Nichols (1953), 337 Mich 684.” Also, in the case Young v. Groenendal (1968) 10 Mich App 112, the general rule that contributory negligence is available as a defense to an action based on a nuisance where the nuisance is caused by negligent conduct was recognized. The Court said: “The Supreme Court of Michigan has stated that as a general rule contributory negligence is available as a defense to an action based on a nuisance where the nuisance is caused by negligent conduct. Denny v. Garavaglia (1952), 333 Mich 317. The rule is contra by the established weight of authority when there is a ‘classic’ or ‘standard’ or ‘absolute’ nuisance involved. See 73 ALR2d 1381. The latter type nuisance arises when one so uses his land as to cause unreasonable interference with the use and enjoyment of the land of another. The classic nuisance is not in question here because there are no conflicting real property interests being asserted. “Whether the source of a nuisance action is really negligence requires attentiveness to all the facts of the action. In Dahl v. Glover (1956), 344 Mich 639, the Supreme Court, relying on Denny v. Garavaglia, supra, held that a jury charge on contributory negligence as a defense to be considered by the jury was proper although plaintiff, at the close of her evidence, withdrew her count in negligence and relied solely on her count in nuisance. In the instant case, with no change in the facts alleged to support the cause of action, plaintiff amended his complaint to read nuisance instead of negligence. As in Dahl v. Glover, supra, the trial court may and should penetrate the formal label to discover the actualities of the case.” (Emphasis supplied.) The brief amicus curiae of the Michigan Association of Municipal Attorneys which argues in support of the defendant city’s position that nuisance cannot be based on negligence alone cites the case of Awad v. McGolgan (1959), 357 Mich 386. However, this case is distinguishable from the preceding cases because the action sounded in contract rather than in tort. The Court specifically recognized the negligence-nuisance type of action at p 390 where it said: “We do not hold that the negligence-nuisance type of action referred to above may never be brought. In a proper case it may be, and, if so, it partakes of the essentials of a negligence action, including such defenses as that of contributory negligence. (See annotation, 57 ALR 7.) The name (negligence or nuisance) does not control the result. The point is, however, that the gravamen of the action must sound in tort and a landlord’s breach of promise to repair does not so sound.” Thus, this Court concludes that the 1loyston Case, supra, insofar as it holds that want of care in maintenance presents a question of negligence only, and not that of a public nuisance, has been overruled indirectly by subsequent cases, Denny, Dahl, Young, supra, and that the plaintiff has stated a cause of action in nuisance even though the allegations relate solely to negligence. Further, we hold that contributory negligence is available as a defense in such a case; to wit, where the nuisance giving rise to the cause of action is based on negligent conduct. Young v. Groenendal, supra, Denny v. Garavaglia, supra, and Dahl v. Glover, supra. Plaintiff vigorously contends that the instant case is within the first or second categories as quoted in the Denny Case, supra. We cannot agree that it is in the first category — namely, nuisances which result from conduct which is a violation of law even though the act referred to, PA 1965, No 87 (MCLA § 325.291 el seq. [Stat Ann 1969 Cum Supp § 14.435(1) el seq.]) was given immediate effect June 28, 1965, and the injury in question occurred December 4, 1965, because the statute did not prohibit open dumps, but rather it required licensing. Further, the rules and regulations promulgated to implement this licensing and regulating act had not been published at the time of the injury, as required by PA 1943, No 88, § 4, as amended by PA 1964, No 161, (MCLA § 24.74 [Stat Ann 1969 Cum Supp § 3.560 (10)]) which is a condition precedent to their being effective, nor had they been given immediate effect by the governor as authorized by § 5 of the fore going act (MCLA § 24.75 [Stat Ann 1961 Rev § 3.560(H)]). With regard to the second category, nuisances which are intentional, we think the trial judge properly left this question to the jury which held unanimously on a special finding that there was no intentional nuisance, but held by a vote of ten to two that there was a nuisance arising out of the manner of operation, in other words negligence. Dahl v. Glover, supra. We come now to the constitutional question. Is recovery barred by PA 1964, No 170, § 7, or, in the alternative, is § 7 unconstitutional? Section 7 states: “Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein said government agency is engaged in the exercise and discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is hereby affirmed.” There is no question but what the legislature has the authority to adopt this type of legislation, Williams v. City of Detroit (1961), 364 Mich 231. Nevertheless, the legislature cannot exercise this authority in a manner which violates the prohibitions expressed in Const 1963, art 4, § 24. That section provides: “No law shall embrace more than one object, which shall be expressed in its title. No bill shall be altered or amended on its passage through either house so as to change its original purpose as determined by its total content and not alone by its title.” Therefore, this Court must decide whether PA 1964, No 170, § 7, embraces an object not expressed in its title. The title to the act reads: “An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in a governmental function, for injuries to property and persons caused by negligence; to define and limit such liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of such liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; and to repeal certain acts and parts of acts.” (Emphasis supplied.) Specifically, since the title refers to “negligence” whereas § 7 refers to “tort liability,” is § 7 unconstitutional because broader in scope than the title? There is no doubt that negligence is a kind of tort, but there are also intentional torts not based on negligence. Thus, on its face the section is not included in the title. However, the variety of the Michigan judicial decisions of the past decade dealing with governmental immunity resulted in the legislature deciding to adopt this act to make uniform the liability of governmental agencies. If at all possible, such obvious legislative intent should not be thwarted by a ruling that § 7 is unconstitutional. The history of governmental immunity in Michigan is now divided into pre-Williams and post-Williams law. In the landmark case, Williams v. City of Detroit, supra, our Supreme Court wrote three fascinating but differing opinions, the ultimate effect of which was to overrule prospectively the common-law rule that cities while performing a governmental function are immune from liability for negligence. The trial judge in that case, Victor J. Baum, later wrote an article entitled “Governmental Immunity in Michigan — Some Recent Developments” which was printed in the Michigan State Bar Journal, May 1965, pp 37-48, wherein he summarized the pre-Williams law as follows: “To put the pre-Williams law in a nutshell, the picture was one of near-total immunity for all levels and agencies of government while engaged in a governmental function. By legislation there were small areas of exposure for injuries resulting from defective maintenance of public roads and from negligent operation of autos and airplanes. “With respect to road maintenance, only the lesser levels of government had exposure. The state continued to be immune. “Also there were the tiny judge-made islands of exposure for direct trespassory act and nuisance. “There was another rather large judge-made area of exposure arising out of proprietary activity and this exposure extended to all levels of government, including the state.” The Williams Case, supra, was followed the same year by McDowell v. State Highway Commissioner (1961), 365 Mich 268, in which the Supreme Court held that insofar as the state is concerned, the doctrine of immunity of state government, as it presently exists in Michigan, is a creature of the legislature, based on a pattern of deliberate legislative choices, which cannot be altered by the Court. Additionally, the Supreme Court held in Sayers v. School District No. 1, Fractional (1962), 366 Mich 217, that school districts have immunity as agencies of state government, and in Myers v. Genesee County Auditor (1965), 375 Mich 1 the Supreme Court said that counties, townships and villages do not have governmental immunity when engaged in a governmental function. Along the way, there were the holdings in Lewis v. Genesee County (1963), 370 Mich 110, Munson v. County of Menominee (1963), 371 Mich 504, and Sherbutte v. City of Marine City (1964), 374 Mich 48, which further defined the application of the law of governmental immunity. It is against this now historic judicial setting that the legislature adopted PA 1964, No 170, in an attempt to make uniform the liability of governmental agencies when engaged in governmental functions. Attorneys amicus curiae have vigorously argued the position that PA 1964, No 170, § 7, grants all governmental agencies immunity from all tort liability when engaged in the exercise and discharge of a governmental function and does not violate Const 1963, art 4, § 24, despite the fact that the title of that act is limited to negligence. First, it is contended that the last part of art 4, § 24, namely, “as determined by its total content and not alone by its title,” which language was not in the 1908 Constitution, provides a strong rationale for the position that PA 1964, No 170, § 7, is a valid includable part of the original legislative intent and purpose. The answer to that contention is that two distinct prohibitions are stated in § 24. The new language modifies the subject, “bill,” in the second sentence and does not affect the meaning of the first sentence where the subject is “law.” Further, arguing that if one can find the object of a statute by reading the title and the act, then the object is fairly reflected therein and so no one is misled by a title which does not state the object accurately, is circular reasoning. Amici curiae seek to find additional comfort in the opinion of Justice Brennan in Smith v. Ginther (1967), 379 Mich 208. It is sufficient answer for this Court to point out that Justice Brennan’s opinion was the dissenting opinion, and, furthermore, was not directed to the question of constitutionality. Additionally, it is questionable whether the legislature meant to grant immunity from all tort liability in § 7. As pointed out previously some exceptions to governmental immunity existed even in pre-Williams times, two of them being in the areas of direct trespassory acts and nuisance. We think that the constitutionality of § 7 cannot be sustained if it is construed as applying to all tort liability when the title is limited to negligence. We agree with the point made in the brief on behalf of the intervenor that legislators mig'ht have been misled by the title into voting affirmatively, thinking that immunity from liability for negligence desirable, yet not wishing to go so far as to grant immunity from assault and battery, false arrest, invasion of privacy, direct trespass, nuisance, and other torts. Vernor v. Secretary of State (1914), 179 Mich 157, 160; Leininger v. Secretary of State (1947), 316 Mich 644, 649; Continental Motors Corporation v. Township of Mushegon (1965), 376 Mich 170, 179. There remains the possibility of limiting § 7 to tort liability “based on negligence.” By statutory construction this Court might conceivably read in the words “based on negligence,” thereby limiting § 7 so that it is not broader in scope than the title. If this Court were to read into § 7 the words “based on negligence” this might bar plaintiff’s recovery as his cause of action in nuisance is actually based on allegations of negligence. None of the cases relative to nuisance cited at p 38 in Judge Baum’s article, supra, involve a nuisance based on negligence nor a governmental body, so the courts were not presented with the governmental immunity question. Since the Supreme Court has definitely made a distinction between nuisance based on negligence and other kinds of nuisance when the defense of contributory negligence was involved (Denny, Dahl, Young, supra), it is reasonable and consistent to make such a distinction between nuisance arising out of negligence and other types of nuisance when making exceptions to the rule of governmental immunity. To hold otherwise would be illogical, since the same facts may support a cause of action in nuisance created by negligence as support a cause of action in negligence. The trial judge considered and rejected this possibility as “a strained construction” and “extreme judicial legislation.” With this view, this Court agrees. The trial judge concluded that § 7 was severable from the remainder of the act and struck it as unconstitutional. While we affirm his opinion, we do not imply that none of the other sections might not violate Const 1963, art 4, § 24. For the purposes of this case, we deem it unnecessary to rule on the constitutionality of each of the sections of PA 1964, No 170. We turn now to the question of adequacy of the verdict which plaintiff raised in his appeal. The trial judge in ruling on plaintiff’s motion for new trial and additur found that the plaintiff was a married man without minor children, 59 years of age, who lost less than 30 days of work as a result of the accident and at the time of the trial was on the same job that he had previously held. Plaintiff’s foreman testified that he was a good worker and that he intended to continue him in his employ. The testimony indicated that his take home pay was $78 per week before the accident and was slightly higher at the time of trial. The out-of-pocket medical and hospital expense was $784.44. This together with the wage loss totaled $1,096.44. There was in addition, earning capacity damage, pain and suffering, and permanent injury to be considered. The trial court then held that the verdict of $12,500 was within the jury’s discretion, citing from 11 ALR3d 461 as follows: “‘[d] Adequate — $18,677 to man assaulted with pitchfork; loss of one eye; fractured nose; dental bridgework destroyed; laceration of face; no showing of permanent loss of earning capacity. Doivd v. Webb (CA3 1964), 337 F2d 93. £££[e] Inadequate — $6,000, increased to $12,000; 30-year-old, semiskilled workman earning about $250 per month; loss of left eye. Tyler v. United States Casualty Company (La App, 1961), 127 So 2d 804.’” The court further stated that the verdict could not be said to shock the judicial conscience, nor to be erroneous as a matter of law. Under these circumstances, this Court will not say that the jury and trial judge were in error. See Teller v. George (1960), 361 Mich 118; Osberry v. Watters (1967), 7 Mich App 258. Affirmed with no costs, a public question being involved. Holbrook, J., concurred. During the pendency of these causes plaintiff Leo V. Maki died and by order of this Court Virginia Maki, administratrix of the estate of Leo V. Maki, deceased, was substituted as party plaintiff. When plaintiff is mentioned in this opinion, reference is to the original plaintiff, Leo V. Maki. Buie numbers 325.1101-325.1110, promulgated pursuant to PA 1965, No 87, were filed with the Secretary of State November 23, 1965 at 4:15 p.m. They were published in the Michigan Administrative Code Quarterly Supplement 45 on February 14, 1966. Tlie comparable prohibitions in the Michigan Constitution of 1908 aro in art 5, §§ 21, 22. See Judge Baum’s article, supra.

R. B. Burns, J. Eastern Michigan University is an institution of higher education established by law having authority to grant baccalaureate degrees. Plaintiff is the constitutionally designated body granted the power generally to supervise and control the university. Defendant is an unincorporated state administrative agency created by PA 1939, No 176, as amended, MOLA § 423.3 (Stat Ann 1968 Rev § 17.454[3]). The university employs academic and nonacademic personnel. The American Federation of State, County and Municipal Employees (Council 7 and Local 1666) filed a petition with defendant for certification as the exclusive bargaining representative for the non-teaching employees at the physical plant department of the university, excluding supervisory, executive, administrative, stenographic and clerical employees. Defendant held a public hearing on this petition and plaintiff objected to defendant assuming jurisdiction of the matter on the basis that plaintiff was a constitutional body corporate, had exclusive control of the university, and was not subject to PA 1947, No 336. MCLA § 423.201 et seq. (Stat Ann 1968 Rev § 17.455 [1] et seq.). The board ruled that plaintiff was a public employer under the act and fell within its jurisdiction. Following this decision by the board, plaintiff filed a complaint seeking a declaratory judgment to the effect that it is not a public employer within the meaning of PA 1947, No 336, and that to apply it to plaintiff is a violation of Const 1963, art 8, § 6. The trial court held that PA 1947, No 336, as amended by PA 1965, Nos 379 and 397, could be applied to plaintiff and that the employees of the board of control of Eastern Michigan University are public employees. • Plaintiff appeals. Plaintiff argues first that the application of PA 1947, No 336 to it violates the rights given to the board as a constitutional body by Const 1963, art 8, § 6. Second, they allege that the employees of Eastern Michigan University cannot be considered public employees under the act since the effect is again contrary to their right under the constitution. Plaintiff’s argument on the first point is based upon the 1963 Michigan constitution’s creation of a separate board of control to deal with all matters pertaining to Eastern Michigan University. Const 1963, art 8, § 6 states: “Other institutions of higher education established by law having authority to grant baccalaureate degrees shall each be governed by a board of control which shall be a body corporate. The board shall have general supervision of the institution and the control and direction of all expenditures from the institution’s funds.” The plaintiff claims this section prohibits the legislature from passing any act which in any way interferes with plaintiff’s general supervision of the university. Cases have been cited by plaintiff wherein the Supreme Court has held that acts of the legislature interfered with constitutional bodies’ general supervision of institutions and, therefore, were unconstitutional. Those cases have involved statutes enacted for specific purposes affecting the general supervision of the institution. In People, ex rel Attorney General v. Regents of the University (1874), 30 Mich 473, the Court denied a writ of mandamus to compel the university to appoint, install and maintain two professors of homeopathy in the department of medicine. In Sterling v. Regents of University of Michigan (1896), 110 Mich 369, the Court held that the legislature could not direct the board of regents to establish a homeopathic medical college as a branch of the university at Detroit. Const 1963, art 4, § 48 provides: “The legislature may enact laws providing .for the resolution of disputes concerning public employees, except those in the state classified civil service.” The legislature has acted under this authority, prohibited strikes and provided that grievances be submitted to the defendant board. Peters v. Michigan State College (1948), 320 Mich 243, held that Michigan State College, a constitutional corporation, was subject to the provisions of the Michigan Workmen’s Compensation Act as passed by the legislature; that defendant was an “incorporated public board.” In Branum v. Board of Regents of the University of Michigan (1966), 5 Mich App 134, the board of regents argued that the legislature could not waive the governmental immunity of the University of Michigan as it was a constitutional corporation and not subject to the control of the legislature. The Court rejected the defendant’s argument, stating on pp 138, 139: “It is the opinion of this Court that the legislature can validly exercise its police power for the welfare of the people of this State, and a constitutional corporation such as the board of regents of the University of Michigan can lawfully be affected thereby. The University of Michigan is an independent branch of the government of the State of Michigan, but it is not an island. Within the confines of the operation and the allocation of funds of the University, it is supreme. Without these confines, however, there is no reason to allow the regents to use their independence to thwart the clearly established public policy of the people of Michigan.” The plaintiff is a public employer and its employees are public employees. The act as passed by the legislature was within the authority granted by the constitution and it promotes the general welfare of the people of the State of Michigan by attempting to resolve labor disputes of public employees. Affirmed. No costs, a public question being involved. All concurred.

T. Gr. Kavanagh, J. Plaintiff, an insurance agent, contracted to place several advertisements in the Flint classified telephone directory. The defendant, Michigan Bell Telephone Company, accepted the order and agreed to publish the listings in its 1963 Yellow Pages — but failed to do so. Upon plaintiff’s suit for damages, the defendant Bell Telephone asserted the following clause of their contract as an affirmative defense: “Telephone company (a) will not be bound by any verbal agreements or (b) will not be liable to advertiser for damages resulting from failure to include all or any of said items of advertising in the directories or from errors in the advertising printed in the directories, in excess of the agreed prices for such advertising for the issue in which the error or omission occurs.” Then the defendant moved for, and was granted, a summary judgment of no cause of action. The plaintiff’s appeal questions the trial court’s application of this clause in g-ranting the motion for summary judgment and, further, challenges the legality of such a clause on the grounds of public policy. He argues that the clause in question limits the liability of the telephone company only as it pertains to damages for breach of contract, and that such a contracted disclaimer may not be read as a limitation of its liability for its own negligence. He cites as authority two Michigan cases: Harbaugh v. Citizens Telephone Co. (1916), 190 Mich 421 and Muskegon Agency, Inc. v. General Telephone Company of Michigan (1954), 340 Mich 472 and (1957), 350 Mich 41. Both the Harbaugh and General Telephone cases involved actions for an asserted breach of duty by a public utility in the area of its public service and they did not involve, as the present case does, a breach of duty by a public utility in its private service. The defendant asserts that it is not required to provide the Yellow Pages and therefore it is to be treated as a private party and not a public utility when soliciting and contracting advertisements. The defendant further contends, that, since this is an area of private contract, it may lawfully require those who desire to advertise in the Yellow Pages to agree to a limitation of liability in the event of an omission or error in the Yellow Pages. We cannot properly resolve the questions presented by adopting the position of either of the parties without qualification. We cannot say with the plaintiff that all provisions for limiting one’s liability for negligence are void as against public policy. Nor can we say with the defendant that public policy is not concerned with private contract, and therefore, a person is free to exculpate himself from liability as he may see fit. The principle of freedom to contract does not carry a license to insert any provision in an agreement which a party deems advantageous. The public is concerned with the legality of contracts and limits the contractual freedom of private parties to legal undertakings. This public concern is manifest in the statutes and decisions of this state. Nor can we say it is against public policy for the defendant to limit its liability for its own negligence in all circumstances. Such a limitation may take the form of a disclaimer of liability beyond a certain amount or it may take the form of a provision for stipulated or liquidated damages. But in all this, public policy does insist that this, as every other term of a contract, not be unconscionable. Implicit in the principle of freedom of contract is the concept that at the time of contracting each party has a realistic alternative to acceptance of the terms offered. Where goods and services can only be obtained from one source (or several sources on noncompetitive terms) the choices of one who desires to purchase are limited to acceptance of the terms offered or doing without. Depending on the nature of the goods or services and the purchaser’s needs, doing without may or may not be a realistic alternative. Where it is not, one who successfully exacts agreement to an unreasonable term cannot insist on the courts enforcing it on the ground that it was “freely” entered into, when it was not. He cannot in the name of freedom of contract be heard to insist on enforcement of an unreasonable contract term against one who on any fair appraisal was not free to accept or reject that term. There are then two inquiries in a case such as this: (1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word, what are their options?; (2) Is the challenged term substantively reasonable? “Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together, .with contract terms which are unreasonably favorable to the other party.” Williams v. Walker-Thomas Furniture Company (1965), 121 App DC 315 (350 F2d 445, 449,18 ALR3d 1297). Thus, merely because the parties have different options or bargaining power, unequal or wholly out of proportion to each other, does not mean that the agreement of one of the parties to a term of a contract will not be enforced against him; if the term is substantively reasonable it will be enforced. By like token, if the provision is substantively unreasonable, it may not be enforced without regard to the relative bargaining power of the contracting parties. Where the contract is affected with a “public interest” a court is more likely to refuse enforcement to an exculpatory provision. Prosser has observed: “The courts have refused to uphold such agreements, however, where one party is at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence. Thus it is generally held that a contract exempting an employer from all liability for negligence toward his employees is void as against public policy. The same is true as to the efforts of public utilities to escape liability for negligence in the performance of their duty of public service. A carrier who transports goods or passengers for hire, or a telegraph company transmitting a message, may not contract away its public responsibility, and this is true although the agreement takes the form of a limitation of recovery to an amount less than the probable damages. It has been held, however, that the contract will be sustained where it represents an honest attempt to fix a value as liquidated damages in advance, and the carrier graduates its rates according to such value, so that full protection would be open to the plaintiff upon paying a higher rate. The same rules apply to innkeepers and public ware-housemen.” Prosser, Law of Torts (3d ed), § 67, pp 457, 458. It is not enough to say that “freedom of contract” is the founding principle of our economy, for freedom of contract is directly related to another basic principle of our economy — “freedom of enterprise”. It must be recognized that freedom of enterprise became severely restricted as the giants in our industries and services overwhelmed their competition. It is neither rational nor just to contend that freedom of contract must remain static and immutable as freedom of enterprise inexorably recedes. Both concepts must adjust and adapt to the times. The parties to this suit are not in positions of equal bargaining power. It is common knowledge that defendant’s Yellow Pages is the only directory of classified telephone listings freely distributed to all the telephone subscribers in the Flint area. It is not disputed that the contract signed by the parties was a form prepared by the defendant and used by the defendant in all subscriptions for advertising in the Yellow Pages. Nor is it argued by the defendant that the plaintiff could have bargained for different terms in the contract. It was strictly a “take it or leave it” proposition. Under the circumstances the plaintiff had the option of agreeing to the offered terms or doing without advertising in the Yellow Pages. There being no competing directory or means of communicating with the same audience of potential customers except possibly at prohibitive (and by comparison totally disproportionate) cost, doing without in this case was not a realistic alternative. Clearly the challenged term is substantively unreasonable. It relieves the defendant from all liability' — its only obligation is to return the agreed contract price paid for the service it did not perform. We have concluded that this provision is unreasonable and, accordingly, we decline to enforce it. We believe the law in Michigan to be that, where goods or services used by a significant segment of the public can be obtained from only one source, or from limited sources on no more favorable terms, an unreasonable term in a contract for such goods or services will not be enforced as a matter of public policy. Reversed and remanded for trial on the merits. Costs to appellant. Levin, J., concurred. There are several eases in other jurisdictions wherein exculpatory clauses identical or similar to that involved here have been upheld. In none of these cases however, have the courts given consideration to the issue we regard as crueial viz. the problem of unconscionability. Several cases correctly point out that the Yellow Pages are not part of the telephone company’s public duty but then go on to assume without further inquiry that the limitation clause is automatically valid under general contract law, Baird v. Chesapeake & Potomac Telephone Company (1955), 140 Md 448 (117 A2d 873) ; Georges v. Pacific Telephone and Telegraph Company (D Ore, 1960) 184 F Supp 571; Smith v. Southern Bell Telephone and Telegraph Company (1962), 51 Tenn App 146 (364 SW2d 952). Others emphasize the traditional sanctity of free contract without questioning whether that eoneept is applicable in the particular case, Wilson v. Southern Bell Telephone & Telegraph Company (La App, 1967), 194 So 2d 739, or rely on the lack of definite proof of lost profits, with only passing mention of the limitation of liability clause, Mitchell v. Southwestern Bell Telephone Company (Mo App, 1957), 298 SW2d 520; Wade v. Southwestern Bell Telephone Company (Tex Civ App, 1961), 352 SW2d 460. Many eases simply state the conclusion, that the limitation is valid, citing other eases which have done the same, Russell v. Southwestern Bell Telephone Company ED Tex, 1955), 130 F Supp 130; Neering v. Southern Bell Telephone and Telegraph Company (SD Fla, 1958), 169 F Supp 133; Advance Service, Inc. v. General Telephone Company of Florida (Fla App, 1966), 187 So 2d 660; Federal Building Service v. Mountain States Telephone and Telegraph Company (1966), 76 NM 524 (417 P2d 24). In only one ease was mention made of the question of relative bargaining positions. In McTighe v. New England Telephone and Telegraph Company (CA 2, 1954), 216 F2d 26, Judge Medina devoted most of his opinion to discussion of the white pages aspeet of the case. After pointing out that the yellow pages involve no sueh public duty as is connected with the white pages, Judge Medina observed: “If there be some disparity in the bargaining power of the contracting parties it is no more than may be found generally to exist; and the courts follow the general rule that the parties are free to contract according to their own judgment and the reasonableness of their engagements will not be entered into.” This indicates that he was aware of the unequal bargaining power argument but does not disclose what considerations or facts moved him to reject it out-of-hand. We must conclude, therefore, that the factor of unequal bargaining power between the parties to the contract has never been fairly considered in connection with the standard limitation of liability clause in a Yellow Rages advertisement contract. E.g., MCLA § 691.991 (Stat Ann 1969 Cum Supp § 26.1146[1]) and CIj 1948, § 256.545 (Stat Ann 1968 Eev § 9.1725). Weaver v. Ann Arbor R. Co. (1905), 139 Mich 590; see Henningsen v. Bloomfield Motors, Inc., 32 NJ 358 (161 A2d 69, 75 ALR2d 1), adopted in Browne v. Fenestra, Inc. (1965), 375 Mich 566, 571. Mann v. Pere Marquette R. Co. (1903), 135 Mich 210; Weaver v. Ann Arbor R. Co., supra; Blazic v. Ford Motor Company (1968), 15 Mich App 377, 380. Although the trial court referred to this provision as one for “liquidated damages” and the briefs of both parties eite eases involving liquidated or stipulated damages, inasmuch as the provision does not even purport to anticipate or- compute aetual damages we do not regard.it as a valid attempt to do so. See Jaquith v. Hudson (1858), 5 Mich 123. See Ellinghaus, In Defense of Unconscionability, 78 Yale L J 757, 766, 767 (1969) ; Henningsen v. Bloomfield Motors, Inc. (1960), 32 NJ 358 (161 A2d 69, 84-96), and cases therein cited; and also Richmond v. Robinson (1864), 12 Mich 193; Jaquith v. Hudson, supra. “In placing particular contracts within or without the category of those affected with a public interest, the eourts have revealed a rough outline of that type of transaction in which exculpatory provisions will be held invalid. Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for publie regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the publie. The party holds himself out as willing to perform this service for any member of the publie who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the publie with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” Tunkl v. Regents of the University of California (1963), 60 Cal 2d 92 (32 Cal Rptr 333, 383 P2d 441, 444-446, 6 ALR3d 693).

Per Curiam. Emil Kryvicky had been a police officer with the city of Hamtramck since April 2, 1955. On September 7, 1966, while off duty, he went to a bar next door to the Hamtramck police station. Testimony given by the owner of the bar indicated that Kryvicky was annoying and molesting other patrons of the bar and had ignored the owner’s requests to stop bothering the customers. The owner went to the police station to get help. Sergeant Sitek, who was on duty, went nest door to the bar and placed Kryvicky under arrest. He was taken to the police station and, after some commotion, was booked and charged with disorderly conduct. The municipal court of Hamtramck found him not guilty in a jury trial. On November 18, 1966, following a hearing before the director of public safety for the city of Hamtramck, Emil Kryvicky was dismissed from the police department. He was found guilty of being under the influence of liquor, conduct unbecoming a police officer, insubordination or disrespect to a superior officer, and using coarse, profane or insolent language. Such conduct is violative of the rules and regulations of the Hamtramck police department. Kryvicky appealed to the Hamtramck civil service commission and on January 17, 1967, following a hearing de novo, the action of the director of public safety was affirmed. An appeal was then taken to the Wayne county circuit court, alleging a total of twenty-five errors. The lower court analyzed each of the charged errors and dismissed most of them. It was held that the errors which did occur were not prejudicial and the record was sufficient to justify the dismissal order of the Hamtramck civil service commission. The question with which we are concerned is whether the trial court was correct in ruling that the testimony adduced at the hearing before the commission was sufficient to justify a decision of dismissal. The allegations of error made by appellant were comprehensively and properly analyzed, discussed, and ruled upon by the lower court. They lack substantial merit and we find no basis for reversal. The testimony during the hearing conducted by the Hamtramck civil service commission of the bar own er, a customer of the bar and of several police officers present in the station when Kryvicky was booked and charged, if believed, was sufficient to warrant a dismissal of Officer Kryvicky from the police force. Affirmed. No costs, a public question.

Per Curiam. This: case is submitted, on the people’s motion to affirm. Edgar Giddens, Jr., was convicted by a jury of the crime of robbery unarmed in violation of MCLA § 750.530 (Stat Ann 1954 Rev § 28.798), and on February 28, 1968, he was sentenced to 3-1/2 to 15 years in prison. The case presents two questions: first, did the lower court err in failing to instruct the jury, in response to defense counsel’s request, regarding the offense of attempted robbery? Second, were certain comments by the prosecuting attorney, during closing argument, so prejudicial as to deny defendant a fair and impartial trial? A review of defendant’s brief, the motion to affirm, and the transcript of the trial discloses that the court properly denied defendant’s requested instruction. The court instructed the jury regarding the offenses of unarmed robbery, assault with the intent to rob and steal being unarmed, larceny from a person, and assault and battery. The failure to instruct the jury regarding attempted robbery was proper as there was no evidence to support such an instruction. People v. Stevens (1968), 9 Mich App 531. Defendant’s second allegation of error, pertaining to the prosecuting attorney’s statements during closing argument, was not preserved for appeal since no objection was made. People y. Hider (1968), 12 Mich App 526; People v. Zesk (1944), 309 Mich 129; and People v. Goldberg (1929), 248 Mich 553. Moreover, the record discloses no miscarriage of justice. The statements made were not as highly inflammatory as those found in People v. Ignofo (1946), 315 Mich 626, People v. Holmes (1940), 292 Mich 212, or People v. Kelsey (1942) 303 Mich 715, which resulted in prejudicial error requiring reversal even in the absence of objection in the lower court. Motion to affirm is granted.

Levin, J. The defendant was convicted on a plea of guilty of the crime of conspiring to utter and publish a false instrument. He appeals on leave granted from an order denying his petition for clarification of his sentence. He claims that he was improperly denied credit for the time he spent in the county jail awaiting trial. In response, the people argue that the defendant received credit for the time he was in jail against the sentence imposed in another case and he is not entitled to “duplicate” credit against the sentence imposed in this case. The relevant facts are: In both cases at the conclusion of each appearance (preceding sentence) by the defendant in court, the judge set bond at $1,000; however, bond was not set following the August 8, ,1966 hearing in this case. The relevant statute provides: “Whenever any person is hereafter convicted of any crime within this state and has served any time in jail prior to sentencing because of being denied or unable to furnish bond for the offense of which he is convicted, the trial court in imposing sentence shall specifically grant credit against the sentence for such time served in jail prior to sentencing.” MCLA § 769.11b (Stat Ann 1969 Cum Supp § 28.1083 [2]). Our Court has held that a statement by a trial judge while sentencing a convicted person that he took into consideration the time the convicted person spent in jail awaiting trial does not comply with the requirements of this statute. Booker v. Judge of Recorder’s Court (1967), 7 Mich App 705, 709; People v. Grandahl (1969), 16 Mich App 221, 224, 225. “The required specific grant of credit cannot be accomplished by the trial court stating he has considered the time spent in jail in arriving at the sentence pronounced nor by a statement that defendant has been given credit for such time. It must appear from the record that such specific grant of credit was made and the manner in which it was made. For example, the sentence of [the defendant] would comply with the act if the trial judge had fixed the date.of commencement of sentence as the date [the defendant] was jailed for the offense which led to that sentence, or if after pronouncing sentence, the trial court had stated defendant was to receive 8 months credit against the sentence.” Booker v. Judge of Recorder’s Court, supra, p 709. In Michigan, with exceptions not here relevant, a sentence may not be imposed to commence upon completion or expiration of another sentence. In re Carey (1964), 372 Mich 378, 380. In the absence of the quoted statutory provision one convicted following a trial and sentenced for precisely the same term as one convicted upon a plea of guilty would be made to serve a longer time in jail, i.e., the time spent awaiting trial. Thus, this statutory provision avoids unnecessary chilling of exercise of the right to trial. This statutory provision is remedial and should be liberally construed to effectuate the salutary purposes sought to be achieved by the legislature in its enactment. People v. Havey (1968), 11 Mich App 69. Cf. Booker v. Judge of Recorder’s Court, supra. The construction of the statute which the people seek is in conflict with the legislative purpose as that construction would chill exercise of the right to trial by an accused person who, like the defendant, faces more than one untried charge. ' The statute states that one who serves time in jail awaiting trial because he is “denied or unable to furnish bond for the offense of which he is convicted” is entitled to the sentence credit. In this case, before the defendant pled guilty he was “unable to furnish bond for the offense of which he [was] convicted” although it was set at a relatively low amount — $1,000. After he pled guilty, the defendant was “denied” bond. The statute does not make the convicted person’s right to sentence credit dependent on the reason why bond was denied or, if bond is set, the reason why he was unable to furnish bond. The fact that the defendant may have been unable to furnish bond in this case because even if he did so he might not have been released because of the pending charge in the other case and still other pending charges and related “holds” or may have been denied bond after he pled guilty because he had been sentenced in the other case does not change (it is merely an explanation of) the fact that the defendant was at first “unable” to furnish bond and later was “denied” bond in this case. Nor is there anything in the statute which makes relevant the fact that the consequence of granting credit in this case would be to give the defendant the benefit of the credit against the sentences imposed in both cases. In this connection we note that the sentence credit which the defendant obtained in the other case was of illusory benefit to him; since both sentences run concurrently, the shorter sentence in the other case was in practical effect absorbed by the longer sentence imposed in this case. If the defendant can only have credit against one sentence (as the people contend), surely he should receive the credit against the longer sentence imposed in this case, where it would be of value to him, rather than against the shorter sentence imposed in the other case where the credit was of no value to him. We hold that the statute entitles a convicted person to sentence credit without regard to the reason why he was denied or unable to furnish bond. It is enough that he was not allowed to or could not furnish bond. The defendant in this case is entitled to credit for time served before sentencing even though he received credit for the time served against another sentence. Remanded for the entry of an order correcting the order of conviction and sentence and the mittimus entered in this case in manner consistent with this opinion. All concurred. MCLA §§ 750.249, 750.505 (Stat Ann 1962 Bev § 28.446; Stat Ann 1954 Bev § 28.773). See, e.g., MCLA .§ 768.7a (Stat Ann 1954 Bev § 28.1030[1]); 'MCLA § 750.193 (Stat Ann 1962 Bev § 28.390). If the defendant in this ease had pled guilty promptly after arraignment on the complaint he would, by reason of the concurrency of Michigan sentences, have obtained the benefit of credit for a substantial portion of the nearly 9 months he spent in jail between his arraignment and sentencing. In the Savey case our Court ruled that a convicted person is entitled to credit against the sentence for time served in another State while he was awaiting extradition to Michigan to stand trial on the charge for which he was sentenced. The prosecutor’s brief states that there were other charges pending against the defendant and “holds” filed by police departments in connection therewith.

Danhof, J. Philip Rosen, Seymour Fryman, Bobby Ray Lewis, and Frank Winton were arrested in July, 1965 and charged with conspiracy to commit arson of real property. At the conclusion of the preliminary examination, Winton was discharged for lack of sufficient evidence. The remaining three defendants were bound over for trial, were convicted by a jury, and each was sentenced to five years on probation and a fine of $100 plus costs. Rosen has appealed, raising five claims of error. His main contention is that there was insufficient evidence against him at the trial to sustain a conviction of conspiracy to commit arson. The only evidence connecting Rosen with the conspiracy was the testimony of Orville Rolston and Benjamin Wagner, former employees of the RFC Builders Service Company, of which Rosen was president. At the time of the trial, Rolston had moved from this State and was not available to testify. The trial judge allowed his testimony at the preliminary examination to be read at the trial. This testimony as it relates to the appeal was: “Q. Directing your attention to July the 2nd, 1965, did you have an occasion to be in Marge’s Grill on that date ? “A. Yes, I did. “Q. Who else was with you? “A. Mr. Ben Wagner. I returned to RPC Builders Service office and Mr. Ben Wagner was waiting there, whom I knew, and he asked if I wanted to go for a cup of coffee next door; we went next door and Fryman and Rosen were sitting at a booth in Marge’s Grill. “Q. Would you relate what occurred in that booth? “A. I sat down beside Fryman and Wagner sat directly across from me beside Rosen. Fryman at this time asked me if I was going to do that job and I laughed at him. “Q. Then what occurred? “A. He looked at Wagner and asked him if he wanted to make a couple hundred bucks real quick, and Wagner asked him doing what; there was no reply. Rosen removed a penny book of matches from his pocket, tore out a match, he had his pen in his hand it appeared as though — the match was on the table. It appeared as though he was writing; the end of the pen was moving but I could not see what was being written or what he was writing on. “He passed the match to Wagner and he said, ‘We supply the material.’ Then immediately he looked— Rosen looked at Fryman and said, ‘You’ll never get away with that, I wouldn’t do that; I was reading about a piece like that in the paper, he got caught.’ ********* “Q. (By Mr. Bishop, continuing): Do you recall anything else that was said at this time? “A. There was a reference made to the house, but I can’t give the exact words. “Q. Do you know who made that reference ? “A. They were made by Fryman. “Q. Was anything said by anybody after Rosen said something about getting caught if they did this or ‘I wouldn’t do this because I would get caught f “Mr. DeVine: Now, this is about as leading á question as I have ever heard. “Mr. Bishop: I am just making reference to the testimony and. asking whether anything was said at that time. “Mr. Feldstein: That question has been answered. It’s been asked and answered, your Honor. “Mr. Baslcin: He has answered that he doesn’t recall anything further. “The Court: You may answer the question. Do you understand the question? “The Witness: I would like that repeated, sir. “The Court: Repeat the question. “Q. (By Mr. Bishop, continuing): At the time that Rosen — after pulling the match out said, ‘I wouldn’t do this. I was reading about a piece in the paper the other day where the people got caught,’ did anybody make any comment as to that that you recall now? “A. Rosen said to Wagner, We supply the material,’ and he passed him the match; I saw the match go to Wagner. “Q. But after that? “A. I can’t recall that, sir.” Wagner testified at the trial relative to Rosen: “Q. (By Mr. Creal): Did you ever have occasion to be in Marge’s Grill with Orville Rolston? “A. Yes, I have. “Q. And can you place it as close as possible to a date? “A. This far away from that date, I can’t, to be honest. “Q. Do you remember what month it would have been in? ■ “A. It would have been in June or-July. “Q. June or July, this is 1965? “A. Yes. “Q. And was this on one of your visits to the— “A. Yes. “Q. Did you go to Marge’s G-rill yourself? “A. No, I went with usually one of the people from the office, was usually with Orville. “Q. Orville Rolston? “A. Yes. “Q. Do yon remember an occasion meeting Philip Rosen and Seymour Fryman? “A. Yes, we met them one day around noontime when we were over there. I was waiting for them. They come to the office and we went immediately over there for dinner, and Orville and I followed after a few minutes. “Q. You say you followed after a few minutes? “A. Yes. “Q. Did you sit with them then? “A. Yes. “Q. And did a conversation take place at this time between you and the defendants, Rosen and Fry-man? “A. Well, it started between Orville and the defendants. “Q-. Started between Orville and them? “A. Yes. “Q. What was said at this time? “A. Well, Fryman asked Orville if he was going to do this job for him, when he was going to do this job, and Orville just smirked it off like. “Q. Like what? “A. Like— (indicating). “Q. Did Orville say anything at this time? “A. He did, but exactly, I can’t recall. “Q. And then what took place? “A. Well, then I asked him what kind of a job and how much and then Rosen took a match out of a book and wrote the words, the letters, ‘use.’ “Q. What did he do with this? “A. Well, I took it and put it and threw it in an ashtray. He had it over in front of him. “Q. He took a match out of a match book? “A. Yes. “Q. You say he wrote the word ‘use’? “A. Yes. “Q. And he handed it to you? “A. Um-hum. “Q. What did you say to him at this time? “A. I didn’t say a thing. “Q. To the best of your recollection, was anything else said at this time? “A. No. We proceeded to leave and go back to the office.” *#**###•• Cross-examination #*###***# “Q. Now, at this meeting, at this conversation in Marge’s Grill, I believe you testified at the examination that this took place on July 2nd, is that correct? “A. It could have been. “Q. Was any job referred to, any specific building or anything else referred to at Marge’s Grill? “A. No, but the way this sounded to me, was like they were talking about another house. “Q. Another house? “A. Yes. A different house, in a different locality. “Q. Prom the one involved in this case? “A. Yes. “Q. And did you take the whole thing as a joke at the time? “A. I didn’t take it too serious. “Q. Did you take it as a joke? "A. More or less, yes. “Q. You stated at the examination you just considered the whole thing a joke from just the way the whole thing was conducted. “A. Well, we’ve always joked around like that. “Q. You mean when there was a house that was in bad shape you just joked about burning it? "A, Well, no — , “Q. Or getting rid of it? ■ “A. Not necessarily a house, just the way the general conversation, we would joke about different things like that. “Q. Is this the way it went on after you went back to the shop and was talking with Mr. Lewis and the other men in the shop? “A. Yes. “Mr. Stein: I have no more questions. “The Court? Anything further, Mr. Creal?” Redirect Examination “By Mr. Creal: “Q. Mr. Wagner, you say you didn’t take it too seriously; was anybody smiling at this time or laughing when they handed you a match? . : “A. Yeah, a little bit. I would say smiling.- . “Q. Who was doing this? “A. Mr. Rosen and myself. “Mr. Creal: I have no further questions.” After the prosecution finished presenting its case, ■defense counsel made two motions for directed verdicts, one on behalf of Rosen and the other on behalf of Fryman and Lewis. The able trial judge replied in part: “Now, regarding the testimony as to defendant Rosen. There is no question that there is less testimony concerning any conversation with this defendant. There is no question that the only- — the testimony was regarding Rosen’s presence in a conversation in one Marge’s Grill, and the thing that Rosen is claimed to have said was that, ‘We supply the material.’ This was at a meeting between Fry-man, Mr. Fryman, Mr. Wagner — or a conversation between Mr. Fryman, Mr. Wagnór, Mr. Rosen, and the witness. Then there is certain testimony as to Mr. Rosen writing something down on a match. There is certain' slight difference between-sorflA of the testimony as to just what was said at the table, what was done at the table. There was some question as to whether anything said at this time or some other time was said in jest or not, some question as to whether or not Mr. Rosen said, ‘We supply the material’ before or after the comment was made as to, he wouldn’t do this. “The court, taking the testimony as a whole, in other words, all of the testimony that was presented, states that there is sufficient evidence, sufficient testimony before the court that the matter should go to the jury. Now, this is not a charge of arson. The court doesn’t find that there is any proof of arson, but this isn’t the charge in this case. This is the charge of an agreement made between certain persons to commit arson. Whether or not there was any arson committed or anything done toward the commission of the act, this is immaterial. This is not a charge of attempt. It would be different if there was an attempt, then there must be something done towards the commission of the act. We don’t have it in this situation. Conspiracy, we might say, is unique in that it calls for no positive action towards the commission of a criminal act. It is the agreement to commit a criminal act that is prohibited. So the motion is denied.” The defendant has contended that the conversation at Marge’s Grill was a joke and, in the alternative, that it shows that he had abandoned any participation in the conspiracy. While these are plausible arguments, it is the function of the trier of fact, not an appellate court, to determine credibility and the weight to be given the evidence presented, People v. Moss (1969), 16 Mich App 295. Defendant states in his brief that there must be an overt act in pursuit of the conspiracy, citing People v. Sobczak (1955), 344 Mich 465. We do not so construe that case. It is true that the Michigan Supreme Court reversed the conviction of conspir aey to violate the statutes against gambling and discharged Sobczak because of insufficient proofs adduced to sustain a verdict of conviction, and in so doing noted that there was no evidence of overt acts on his part. However, the absence of such acts was only one of the facts considered. The court opined (pages 469, 470): “What all of this testimony comes down to is that the defendant was keeping bad company. There is, at least, a breath of suspicion that he was involved somehow in this nefarious business. But it is no more than a suspicion. There may have been valid reasons for the associations described. The names of the defendants have a national similarity. There is evidence of one apparently legitimate business transaction (concerning the Packard street lot) which was the subject of some dealings between defendants and Kuzera. “It has long been established, of course, that conspiracy may be proved by circumstantial evidence, in fact that such is generally the case. People v. Beller (1940), 294 Mich 464; People v. Pitcher (1867), 15 Mich 397. But the circumstances must be such as to warrant a fair inference of the facts to be established. The meetings of defendant with Kuzera are as consistent with innocence as with guilt and it is never to be forgotten that a presumption of innocence cloaks our citizens from birth to death. What we fail to find in this record is any proof that any of the other parties to this conspiracy ever so much as spoke of it to defendant, or he of it to them, or to anyone else, or even that he knew of it. We find none of the other codefendants at the trial implicating this defendant in any way, a circumstance of some significance in view of the fact that the State called as witnesses numerous witnesses who had participated in varying degrees in the operation, but who had not been named in the information as defendants. None of these witnesses implicated this defendant, although their testimony ténded to involve several defendants other than- appellant Sobczak. Nor do we find overt acts on his part. What we have is association at certain times oyer a period of a year with evil men. That is not enough. Criminal guilt.under our law is personal fault. It is highly individualistic. It comes not from association, without more, be it with family or friends.” • ■ The 'instant case is distinguishable from the Sobczak Case, supra, because here there was testimony implicating Bosen and showing that parties to the conspiracy spoke to him about it and he to them. As stated in 3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1226, p 1619: “The gist of the offense is the unlawful conspiracy, and it is not necessary that any overt act should have been done in pursuance of such combination. Proof of an overt act may be important for the bearing it may have on the evidence of the conspiracy, and also as it may aid the court in justly grading the punishment upon conviction, but it is not an essential element of the offense.” This Court said in People v. Newsome (1966), 3 Mich App 541, 552, 553: ' “The agreement is the gravamen of the offense and must be proved. “The permitted methods of proving such an agreement in a criminal conspiracy are clearly set forth together with supporting citations in an article appearing in 62 Harvard Law Beview (1948-1949), p 276, ‘The Conspiracy Dilemma: Prosecution of Group Crime or Protection of Individual Defendants’ as follows (pp 278, 279) : ' “ "‘Establishing the existence of the agreement obviously involves difficult problems of proof, most of which have been solved by a lenient attitude towards the prosecution. Since the criminal combination is frequently an organization flexible in membership, it has been held unnecessary for the jury to find that the individual defendant was a party to the original agreement. If he joins the conspiracy later, he becomes equally liable with the original conspirators. Even with such an expanded view of participation, the difficulty of obtaining direct proof that defendant has been a party to the agreement is manifest. Persons agreeing to engage in criminal activities do not typically “go out upon the public highways and proclaim their purpose; their methods are devious, hidden, secret, and clandestine”. Therefore, the courts have held that proof of a formal agreement is unnecessary to support a finding of guilt, and that it is sufficient if the circumstances, acts, and conduct of the parties are such as to show an agreement in fact. Such an agreement may be established by evidence that “the parties steadily pursue the same object, whether acting separately or together by common or different means, but ever leading to the same unlawful result.” The broad discretion vested in the jury by charges phrased in these accepted terms is extended by the rule that it is unnecessary to show that the defendant knew the full scope of the conspiracy or participated in carrying out each detail. Nor need he be acquainted with each of his alleged coconspirators or know the exact part played by each of them. Any other view would make conspiracy prosecutions impossible. Conspirators frequently do not have full knowledge of all ramifications of the combination, particularly where the organization is a complex one. Indeed, the self-interest of the conspirators would frequently demand that as few as possible have such knowledge.’ ” We hold that there was sufficient testimony to allow the case to go to the jury and that the trial judge was not clearly in error in refusing the defendant’s motion for a directed verdict. This testi mony, if believed by the jury, was sufficient to sustain bis conviction of conspiracy to commit arson. Tbe remaining claims of error are without merit and do not require discussion. Affirmed. All concurred. Arson of real property: CL 1948, § 750.73 (Stat Ann 1962 Rev § 28.268); conspiracy: CLS 1961, § 750.505 (Stat Ann 1954 Rev § 28.773).

Per Curiam. Plaintiff, driving north on Coolidge Highway in the city of Oak Park, was approaching the intersection of Coolidge and Southend when she encountered a yellow traffic light. The pavement was wet and when plaintiff applied her brakes her car unexpectedly swerved into the southbound lane of travel where it was struck by an automobile driven by defendant Goldberg, which was proceeding south on Coolidge. Plaintiff’s only allegation of defendant’s negligence was that defendant, had he been driving with due care, would have seen plaintiff swerve into his lane and would have been able to avoid hitting her. In support of this, plaintiff attempted to introduce the opinion testimony of an expert in automobile accident reconstruction that there was sufficient distance between defendant’s car and the point of impact, when plaintiff’s car crossed into defendant’s lane of travel, to have allowed an ordinary man of defendant’s age to stop in time. The trial court ruled the testimony inadmissible as an invasion of the province of the jury. At the close of plaintiff’s proofs, the trial court granted defendant’s motion for directed verdict, stating: “Gentlemen, there is not any evidence in dispute which would even tend to show any other theory or hypothesis here based on' the testimony and evidence except that the plaintiff was negligent, that the negligence continued to the point of impact and was the proximate cause of the accident. Further, there is no testimony which would indicate that the der fendant was negligent in the operation of his vehicle. This, in light of the testimony most favorable to the plaintiff,” A review of the briefs and records presented reveals no reversible error. Plaintiff testified that when she crossed over the centerline toward defendant’s line of travel she saw defendant and that 2 or 3 seconds intervened between the time she saw defendant and the time he hit her. Plaintiff’s evidence showed that an automobile traveling at 35 miles per hour, which was the speed limit and the speed at which defendant asserted he was driving, can be stopped in 2-7/8 seconds. See Am Jur 2d, Desk Book, Documents Nos. 175 and 176, pp 455, 456. Coolidge. Highway has 4 lanes, 2 lanes north and 2 lanes south. Defendant was traveling in the most westerly southbound lane. Thus, plaintiff did not enter defendant’s lane of travel when she crossed the centerline and a portion of the 2 or 3 seconds was consumed in her crossing the easterly southbound lane. We think the trial judge properly concluded that defendant could not be deemed guilty of negligence in failing to perceive plaintiff at the instant that she crossed the centerline even if, as plaintiff argues, had defendant perceived plaintiff’s vehicle at that instant and applied the brakes of his car, he could have brought it to a stop in 2-7/8 seconds. Compare Craddock v. Torrence Oil Company (1948), 322 Mich 510, 517; Torbert v. Smith’s Estate (1930), 250 Mich 62, 65. The trial court’s denial of costs and attorney fees to defendants pursuant to GCR 1963,111.6 was proper. Affirmed. Costs to appellees.

V. J. Brennan, J. This appeal involves the scope of inquiry on habeas corpus from an extradition warrant. On September 22, 1967, the State of Georgia requested the Governor of the State of Michigan to extradite one Jasper Luke Rayborn for the offense of “larceny of an automobile,” This request was accompanied by an indictment against Jasper Luke Eayborn for the same offense, the indictment having been handed down by a grand jury at the May, 1967, term of the Superior Court for Clayton County, Georgia. On October 27, 1967, a hearing was held before a legal representative of the Governor. Pursuant to this hearing, the. acting Governor of the State of Michigan issued a rendition warrant on January 17, 1968. On February 29, 1968, Eayborn’s counsel petitioned for a writ of habeas corpus, contending Eayborn was not a fugitive as he was charged with the commission of a non-existent crime. The trial court granted the writ, and from this grant the people appeal. The indictment charges Eayborn with “wrongfully, * * * tak[ing] [and] stealing] * * * one 1967 * * * Buick automobile of the value of $3,800, and the property of Claudette Carter Eayborn.” The indictment thus charges Eayborn with the commission of acts which, from the face of the indictment, are criminal under Georgia law. It appears, however, that Claudette Carter Eayborn was the wife of the appellee at the time of the taking. Appellee contends, as he did below, that the trial court may properly go beyond the face of the indictment to make this factual determination and may then proceed to rule that the acts alleged do not constitute a crime under the law of the demanding state. Appellee predicates his claim that he is charged with a non-existent crime on the following allegations: that Georgia is a common law state; that at common law it is not the crime of stealing to take the property of one’s wife; and that this rule has not been explicitly abolished in Georgia. The people, oil the other hand, contend the trial court erred in granting the writ. The people maintain the constitutional requirements for extradition are satisfied if a charge of crime appears on the face of the indictment and therefore further inquiry is both improper and unnecessary. It is for the Georgia court to decide whether Rayborn’s acts are subject to criminal sanctions. Alternatively, it is at least arguable that under present Georgia law a man can be convicted of stealing his wife’s property as certain related common-law disabilities have been statutorily abolished. The Constitution of the United States forms the basis for extradition. Article IV, § 2 provides: “A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.” An early Congress thought this clause not to be self-executing, and thus enacted a statute which, with slight modification, presently reads as follows: “Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such de mand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged.” (18 USCA § 3182) Extradition is further facilitated by the procedural machinery of the Uniform Criminal Extradition Act, which has been adopted by both Michigan and Georgia. The federal statute, mirrored in part by the uniform act, imposes a duty on the executive authority of the asylum state to deliver up a person “charg[ed] with having committed treason, felony, or other crime.” The validity of the detention of a person held under the executive authority is properly tested on habeas corpus. Johnson v. Matthews (CA DC, 1950), 182 F2d 677; Dragisick v. Judge of Recorder’s Court of the City of Detroit (1917), 195 Mich 112. The detention is improper if compliance with the constitutional requirements for extradition is lacking. Pierce v. Creecy (1907), 210 US 387 (28 S Ct 714, 52 L Ed 1113). These requirements include the showing that the person detained is charged with treason, felony or other crime; that the person detained is the fugitive sought; and that a demand for his return has been made in due form. Pierce, supra. Thus, the inquiry on habeas corpus is generally limited to these topics. In re Palmer (1904), 138 Mich 36; United States v. Donovan (CA 2, 1963), 321 F2d 114. The scope of the first requirement (and the attendant inquiry) is in question here. Is the asylum state free to determine that the acts allegedly committed by the fugitive do not constitute a crime under the law of the demanding state? A few courts have answered this question in the affirmative. Several decisions of the United States Supreme Court provide, however, authoritative guidance in our holding that the lower court’s determination exceeded the proper hounds of inquiry. In Pierce v. Creecy, supra, the petitioner claimed that the indictment did not charge him with a crime for the reason, inter alia, that the crime of false swearing, by definition, is limited to false statements of fact and does not include false statements of opinion. Petitioner alleged his statements were merely of opinion. The Court assumed arguendo the truth of petitioner’s allegation, hut nevertheless proceeded to state that a crime was charged within the meaning of the constitutional provision. The Court added (p 404): “This court, in the cases already cited, has said somewhat vaguely, hut with as much precision as the subject admits, that the indictment, in order to constitute a sufficient charge of crime to warrant interstate extradition, need show no more than that the accused was substantially charged with crime. This indictment meets and surpasses that standard, and is enough. If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of states with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would he an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the states, and fruitful of miscarriages of justice. The duty ought not to he assumed unless it is plainly required by the Constitution; and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance.” In Drew v. Thaw (1914), 235 US 432 (35 S Ct 137, 59 L Ed 302) the petitioner, an escapee from a New York mental institution, was released on habeas corpus after having been detained on a warrant from the governor of New Hampshire. New York had sought extradition for the crime of conspiring to commit an act for the perversion or obstruction of justice. The demanding state alleged that petitioner had “conspired with certain persons to procure his escape from the hospital, and did escape, to the obstruction of justice and of due administration of the laws.” Petitioner maintained that his acts were not criminal (and therefore no crime was charged) as he was insane during the planning of the escape, or, if he was sane, -he was entitled to discharge and therefore had not “obstructed justice.” The Court (per Holmes, J.) reversed the order discharging petitioner, saying in part: “We do not regard it as open to debate that the withdrawal, by connivance, of a man from an insane asylum, to which he had been committed as Thaw was, did tend to obstruct the due administration of the law. At least, the New York courts may so decide. Therefore the indictment charges a crime. * # # # * # * # * u* # * jn extradition proceedings, even when, as here, a humane' opportunity is afforded to test them upon habeas corpus, the purpose of the writ is not to substitute the judgment of another tribunal upon the facts or the law of the matter to be tried. The Constitution says nothing about habeas corpus in this connection, hut peremptorily requires that upon proper demand the person charged shall be delivered up to be removed to the state having jurisdiction of the crime. * * * When, as here, the identity of the person, the fact that he is a fugitive from justice, the demand in due form, the indictment by a grand jury for what it and the governor of New York allege to be a crime in that state, and the reasonable possibility that it may be such, all appear, the constitutionally required surrender is not to be interfered with by the summary process of habeas corpus upon speculations as to what ought to be the result of a trial in the place where the Constitution provides for its taking place. We regard it as too clear for lengthy discussion that Thaw should be delivered up at once.” Roberts v. Reilly (1885), 116 US 80 (6 S Ct 291, 29 L Ed 544) also adheres to the standard for extradition which requires only the allegation of the demanding state that a crime of a specified nature is charged. The state of Georgia has charged Ray-born with commission of a crime, that of “larceny of an automobile.” It is for Georgia to decide whether criminal sanctions should be imposed. The trial court is ordered to set aside its order granting the writ of habeas corpus and is directed to enter an order consistent with this opinion. All concurred. MOLA § 780.1 et seq. (Stat Ann X954 Eev § 28.X285[X] et seq.). Ga. Code § 44.40X et seq. Most notably, the Supreme Court of Washington, in Application of Varona (1951), 38 Wash 2d 833 (232 P2d 923). There the petitioner was charged with the unlawful taking of a sum of money which belonged to petitioner and certain other persons doing business as a partnership. The Court examined the ease law of the demanding state, found that partnership property had been deemed not a subject of theft by a partner, and ruled that no crime was charged. Other cases are collected at 40 ALR2d 1151, In Roberts the indictment charged petitioner with grand larceny. Petitioner contended his acts were not criminal (and therefore no crime was charged) as the alleged victim did not have the requisite capacity of ownership under the law of the demanding state. The Court held that the question is properly raised at trial in the demanding state, not on habeas corpus in the asylum state. See also, People v. McLaughlin (1928), 247 NY 238 (160 NE 357).

Levin, J. The petitioner, Florence Miller, appeals from an accelerated judgment denying her petition filed pursuant to §§ 59-66 of the plat aet of 1929 for the vacation of a street and alleys in Double Super. Highways Subdivision No 1, Waterford Township, Oakland County, Michigan. The trial judge ruled that the street and alleys are county roads under the jurisdiction and control of the board of county road commissioners of Oakland county and that the circuit court, therefore, lacks power to vacate them. We agree with his determination and affirm. If the street and alleys sought to be vacated are in fact county roads, the circuit court could not vacate them because under the provisions of § 66 of the plat act and § 18, ch 4 of the general highway law county roads may be vacated only upon the vote of the board of county road commissioners. See In re Petition of Bryant (1949), 323 Mich 424, 434, 435, and In re Petition of Wernicke (1951), 331 Mich 91, 95. The issue before us is thus narrowed to the question whether the street and alleys sought to be vacated are county roads. The street and alleys were purportedly taken over as county roads by resolution of the Oakland county board of road commissioners. The petitioner asserts that the takeover resolution was adopted out of time and was ineffective. Section 2 of the McNitt Act required the board of county road commissioners of each county to take over as county roads the total township highway mileage in the county. Twenty per cent of the township mileage was to be taken over on or before April 1, 1932, and a like percentage on or before April'1 of each succeeding year. “In the year next following,” the board was to take over all dedicated streets and alleys in recorded plats and outside of incorporated cities and villages. Thus, under the McNitt Act the street and alleys which petitioner seeks to vacate should have been taken over by the county road board not later than April 1, 1937, or, possibly, December 31, 1937. The resolution relied upon by the board was not, however, adopted until February 25, 1938. The petitioner claims that the resolution was ineffective because it was adopted after the expiration of the time within which the county road board was required to act. The underlying legislative objective of the McNitt Act was to have boards of county road commissioners take over all township roads and dedicated streets and alleys in recorded plats and outside incorporated cities and villages. The boards were given 6 years within which to accomplish this objective. In this case, although the board’s takeover resolution was adopted out of time, it was adopted soon after the expiration of the prescribed time. The act does not state that a takeover after the expiration of the 6-year period is prohibited. It is entirely silent whether a late takeover is effective and, indeed, it is also silent whether implementing resolutions were required at all to accomplish the takeover provided for and in terms at least required by the act. As we see it, the function of the 6-year time table was to allow for an orderly takeover, one within the absorptive capacity of the county road boards, rather than to impose an absolute time limit for their assumption of control of township roads and dedicated streets and alleys. Accordingly, the legislative purpose would be best served by a construction of the act which does not establish the termination of the prescribed period as an absolute time limit and which recognizes as fully effective a belated implementing resolution such as the one adopted in the present case. Affirmed. No costs, a public question. All concurred. PA 1929, No 172 as amended (MCLA §§ 560.59-560.66 [Stat Aim 1953 Rev §§ 26.489-26,496]). MOLA § 560.66 (Stat Ann 1953 Rev §26.496). PA 1909, No 283 (MCLA § 224.18 (Stat Ann 1958 Rev § 9.118]). PA 1931, No 130 (CL 1948, § 247.2 [Stat Ann §9.142]). The resolution provided that the dedicated streets and alleys in the subdivisions therein named (among whieh was the subdivision involved in the present case) were “as per [the MeNitt Act] Act #130, Public Acts 1931” taken over as county roads and made a part of the Oakland county road system. Cf. Fay v. Wood (1887), 65 Mich 390, 401, and W. R. Reynolds & Co. v. Secretary of State (1927), 238 Mich 552, 554, holding that the failure of a legislative body (the common council in the former ease and the board of supervisors in the latter case) to act within the time prescribed by statute did not prevent action thereafter. Similarly see Hooker v. Bond (1898), 118 Mich 255, 257 (court of chancery), and Harvey v. City Commission of the City of Port Huron (1923), 225 Mich 368, 371 (charter commission, dicta). We also note that section 19 of PA 1951, No 51 (MCLA § 247.669 [Stat Ann 1958 Bev § 9.1097(19)]) provides in part: “The board of county road commissioners in each of the several counties shall, within 1 year from the effective date of this act, complete the taking over as county roads of all roads, streets and alleys heretofore required to be taken over as county roads by the provisions of Act No. 130 of the Public Aets of 1931, as amended, being sections 247.1 to 247.13, inclusive, of the Compiled Laws of 1948.” Section 21 of PA 1951, No 51 (MLCA § 247.671 [Stat Ann 1958 Eev § 9.1097(21)]) repealed the McNitt Act.

Quinn, J. Defendant was convicted by jury verdict of breaking and entering in violation of MCLA § 750.110 (Stat Ann 1969 Cum Supp § 28.305), and he was sentenced to prison. His motion for new trial was denied and he appeals. Defendant’s first assignment of error relates to an in-court identification of defendant by an eyewitness, which defendant contends was tainted by an illegally held lineup. When the prosecuting attorney asked the witness for the identification, defendant objected and moved for a separate record because of a claimed unconstitutional lineup which tainted the identification. A separate record was made but the trial judge refused defendant’s request to continue the separate record to the point of determining the fact of the alleged taint. The identification was permitted, and defendant says this was error without a prior determination that the in court identification was not tainted by the alleged unconstitutional lineup, citing United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). Dale Kuecken lived across from the laundromat that was burglarized. August 15, 1967, about 4:45 A.M., he returned home from work and observed activity near the building that aroused his curiosity. Kuecken saw a person going around behind the building and he heard a voice say “We can’t get in”. He saw someone trying to pry open the front door, and Kuecken called the police. Kuecken then heard glass breaking and an alarm ringing and he saw two persons running toward his side of the street. Kuecken took his shotgun and went outside to stop them. He called “stop” and one (defendant) stopped within eight to ten feet of Kuecken. The former threw something (later determined to be a tire iron) at Kuecken which struck Kuecken in the shoulder. The defendant and the other person drove off in an automobile. The police arrived and Kuecken directed their attention to a ear that was driving away from the scene. The police pursued this car, overtook it and apprehended defendant, Hutton and another. In this interval, a second police car arrived and Kuecken related to the officer what had occurred. Kuecken went with this car on a tour of the neighborhood looking for the persons Kuecken had seen and then to the police station.- There Kuecken observed three people through a one-way glass panel and identified defendant as the person who threw the tire iron. The other two people were Hutton and the other person with Love and Hutton when they were apprehended. This is the alleged lineup defendant complains about. The record discloses that the trial court found that Kuecken was able to identify defendant inde-pendently of the alleged illegal lineup, and this finding is supported by the record. (See Wade, supra.) We find no error on this point. People v. Floyd (1968), 15 Mich App 284; Commonwealth v. Bumpus (1968), 354 Mass 494 (238 NE2d 343). Defendant’s allegation of error with respect to the instructions of the trial court was not preserved for consideration by this Court, GfCR 1963, 516.2. Defendant examined. the .instructions before they were given and he was afforded an opportunity to object to them. He did not object, but he did express satisfaction with them. Defendant claims reversible error because the trial court did not require the prosecuting attorney to indorse two res gestae witnesses on the information. These witnesses were known to defendant prior to trial and he did not move for their endorsement or production at trial. This error was not saved for review. People v. Rimson (1966), 3 Mich App 713; People v. Amos (1968), 10 Mich App 533. The grant of a motion for new trial is discretionary with the trial court. People v. Poole (1967), 7 Mich App 237. Neither the record nor defendant’s arguments persuade us that the trial judge abused his discretion in denying the motion for new trial in this instance. Finally, defendant asserts reversible error because the prosecuting attorney offered two res gestae witnesses to him for cross-examination without having them sworn as witnesses. Defendant made no objection to this procedure at trial nor was it alleged as a basis for new trial. It is raised for the first time on appeal. Defendant’s characterization of these witnesses as res gestae does not make them such, and on this record, we do not find them to be res gestae witnesses. Defendant has failed to demonstrate that any miscarriage of justice resulted from this procedure. No reversible error has been shown. People v. Keiswetter (1967), 7 Mich App 331. Affirmed. All concurred.

Lesinski, C. J. Defendant was convicted by jury verdict of breaking and entering a building with intent to commit larceny therein contrary to MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305), and he appeals. Defendant first contends that the trial court committed reversible error in failing sua sponte to excuse a prospective juror who allegedly manifested bias and prejudice during voir dire. The prejudice allegedly was revealed in the following dialogue: “The Court: Which name do you recognize, Mr. Leaders ? “Prospective Juror Number Four: Gilbert Bar-tell. “The Court: Is he a close friend of yours? “Prospective Juror Number Four: No, sir. “The Court: If he were to testify under oath would you believe him? “Prospective Juror Number Four: Yes, sir.” Defendant interprets the above quoted exchange to constitute evidence that prospective juror four was predisposed to believe prosecution witness Gilbert Bartell. He argues that trial court failure, sua sponte, to excuse this juror, coupled with trial court excusing of other prospective jurors, resulted in an implied comment to the entire jury that the predisposition to believe Bartell without first hear ing testimony was proper. Defendant alleges that this implied comment resulted in denial of defendant’s right to trial by a fair and impartial jury and improperly shifted the burden of proof to defendant. Upon review of the record and briefs, we reject defendant’s contentions. An examination of the trial court transcript indicates that counsel for defendant, in reply to court questioning, replied that defendant was satisfied with the jury for cause. The record discloses further that defendant exercised two peremptory challenges, was entitled to additional peremptory challenges, and was provided the opportunity to excuse prospective juror four peremptorily had he chosen to do so. Instead, defendant by his counsel indicated that he was satisfied with the jury. As this Court stated in People v. Kelley (1968), 11 Mich App 706: “Defendant’s failure to object at the voir dire examination indicating his satisfaction of the jury, forecloses his objection on appeal.” See, also, People v. Lambo (1967), 8 Mich App 320. The trial court cautioned the jurors that a defendant is presumed innocent, the burden of proof being on the prosecution. Furthermore, each juror responded affirmatively to the following question: “Can all of you make this promise; if you are chosen to sit as jurors that you will fairly and impartially judge this case, based upon the evidence that comes out of the witnesses’ mouths that will be called to the witness stand, without regard to any bias, prejudice or sympathy?” It cannot be said that the trial court erred in not excusing the prospective juror sua sponte. Defendant’s second allegation of prejudicial error concerns a statement of a factual nature made by the prosecuting attorney on final argument to the jury. Defendant claims this statement was unfounded and unsupported by the evidence, depriving defendant of a fair and impartial bearing. In People v. Zesk (1944), 309 Mich 129, the Michigan Supreme Court stated: “It is claimed that the acting prosecutor, both in the opening and closing addresses to the jury, indulged in such highly inflammatory and prejudicial remarks that defendant did not have a fair trial, and that objections on the part of defendant’s counsel would not have eradicated the harm done. Defendant’s counsel at the time of the trial made no objections to the remarks. “We have carefully examined the remarks. We find that they were not so prejudicial or improper as to call for, reversal, particularly in view of the fact that no objections were made. They did not call for any exception to the general rule that objections to argument not made at the trial but made for the first time on appeal will not be considered. People v. Goldberg (1929), 248 Mich 553; People v. Connors (1930), 251 Mich 99; People v. Korn (1921), 217 Mich 170.” In the instant case, defendant’s counsel raised no objection and requested no instruction regarding thé alleged error. While the prosecutor’s statement was not supported by direct evidence, a review of the transcript convinces this Court that sufficient evidence was introduced during the trial from which the prosecutor’s statement could, be inferred. As was stated in People v. Morlock (1925), 233 Mich 284: “The prosecuting attorney had a right to draw such an inference from the facts appearing in the record.” In any event, an examination of the statement when considered in light of the testimony presented indi cates the statement not to be so prejudicial or improper as to require reversal of the instant case. Affirmed. All concurred.

Fenlon, J. The city of Flint appeals from the order of the circuit court of Genesee County finding the defendant city in contempt for failure to comply with the mandamus of the court. The plaintiff real estate developer sought from the court a temporary injunction ordering the city to hook up its sewer line to the sewer of plaintiff’s newly completed and occupied apartment development. The circuit court, confronted with a situation in which sewage was outpouring daily from plaintiff’s occupied apartments into open pits, found a health hazard to exist and on March 27, 1967, issued the temporary injunction requested, ordering the city immediately to hook up its sewer line to the sewer of plaintiff’s development, located across the city line in the township of Flint, Genesee County. The defendant city failed to comply with the order of. the court, and on March 31, 1967, the court, after hearing, found the city in contempt. The court entered an order fining the city $250 for each day it failed to comply with the court’s order, and the court further ordered the payment to the plaintiff corporation of damages in the amount of $150 per day, the cost of removing daily by truck the sewage that had poured into the open pits. This appeal both challenges the finding of contempt and, in attacking the validity of the penalty imposed, presents a novel question concerning the power of the circuit court to punish for contempt. I The Finding of Contempt The defendant city urges that the contempt order should be nullified, claiming that the city attorney, Charles Forrest, entertained a good-faith belief that the operation, of the court rule, GCR 1963, 530.1, granted the city an automatic stay of proceedings which entitled the city not to comply with the court’s injunction for a period of 20 days. But this interpretation of the court rules is erroneous. GCR 1963, 710.9, specifically states that the automatic stay provisions of GCR 1963, 530.1 do not apply to orders of mandamus, and GCR 1963, 530.3 spells out that the suspension of injunctions depends on the discretion of the trial court. GCR 1963, 530.6 recognizes the power of this Court and the Supreme Court to stay proceedings and to suspend injunctions during the pendency of an appeal, but here no such suspension was granted from the injunction entered hy the Genesee circuit court. The rationale behind these rules is clear, for the automatic stay of temporary injunctions designed to meet emergency situations would defeat the very purpose of such injunctions. See the committee notes and authors’ comments following GCR 1963, 530, in 3 Honigman & Hawkins, Michigan Court Rules Annotated (2d' ed). Absent a suspension of the injunction hy the trial court or by this Court, the city was under a, compulsion to obey the court’s order. No provision of the court rules can justify the city’s noncompliance with the injunction entered. The city argues on appeal that the health hazard found hy the trial court to exist, and which served as the basis for granting the temporary injunction, was “speculative”. But the trial court’s finding of the existence of the health hazard is sustained in the record hy evidence which was never rebutted by the city., Most importantly, however, litigants are not entitled to second-guess determinations of courts hy ignoring injunctions deemed necessary hy courts to remedy emergency situations. The authority of the judicial process would be rendered nugatory if parties before a court could vest in themselves a discretion in deciding whether to obey or to ignore an injunction of the court. The city argues further as an excuse that the trial court’s designation of the injunction, labeled a “temporary order to hook-up”, was unusual and irregular, but this argument is without merit, for the court’s order, whatever its label, was unambiguously and unmistakably a mandamus to the city to do a specific act: to hook up the city sewer line to the sewer of the plaintiff’s apartment development. The city attorney argues further in his behalf that he held in good faith his view that the operation of the court rules granted an automatic stay of the court’s order, that such a good faith belief negatives any contumaciousness on his part, and that therefore the contempt order should be nullified. We have concluded that this defense is not valid, for where as here the essential purpose behind the contempt order is to compel obedience to the court’s injunction, an intent to defy a court, or a spirit of defiance, is not an essential element of a finding of contempt. See the comment and the cases cited at 48 Mich L Rev 860: “The Intent Element in Contempt of Injunctions, Decrees, and Court Orders”. This case presents no necessity of attempting to differentiate between the elements of civil and criminal contempt, for clearly this contempt proceeding-had no criminal aspect since here the contempt order served essentially the function of compelling-obedience to the court’s injunction. The circuit court’s finding of contempt, made after a full bearing, must be sustained. II The Penalty Imposed Tbe defendant city likewise challenges tbe validity of tbe penalty imposed by tbe court, and, in advancing its contentions, presents a question concerning tbe scope of a trial court’s power to punish for contempt tbat is novel to tbe appellate courts of tbis jurisdiction. Tbe contempt order of tbe court stated: “It is ordered tbat said defendant city of Flint pay a fine in tbe sum of $250 and tbat said fine shall continue each and every day tbat said city of Flint continues to disobey the order of tbe court. And said fine shall commence tbis date, March 31, 1967.” Tbe question presented is whether tbe circuit court could, within tbe scope of § 1715 of tbe Revised Judicature Act, multiply tbe $250 maximum fine by tbe number of days tbe city was in contempt. RJA § 1715 (MOLA § 600.1715; Stat Ann 1962 Rev § 27A.1715), provides: “(1) Punishments for contempt may be by fine, which shall in no case exceed the sum of $250, or by imprisonment, which except in those cases where tbe commitment is for the omission to perform an act or duty which is still within tbe power of tbe party to perform shall not exceed 30 days, or both, in tbe discretion of the court.” (Emphasis supplied.) It has been repeatedly stated by tbe Michigan Supreme Court and by tbe courts of other juris dictions that the power to punish for contempt is essentially an inherent power- and not the creature of statute. The Michigan Supreme Court in In re Chadwick (1896), 109 Mich 588, expressed well this concept of the contempt power as an essentially inherent power: “The power to punish for contempt is inherent in, and as ancient as, courts themselves. It is essential to the proper administration of the law, to enable courts to enforce their orders, judgments, and decrees, and to preserve the confidence and respect of the people, without which the rights of the people cannot be maintained and enforced.” The Michigan legislature has over the years enacted numerous statutes prescribing and defining the power to punish for contempt, the most recent being the Revised Judicature Act of 1961. The Michigan Supreme Court said of the early statutes: “The statutes are in affirmation of the common-law power of courts to punish for contempts, and, while not attempting to curtail the power, they have regulated the mode of proceeding and prescribed what punishment may be inflicted.” Langdon v. Wayne Circuit Judges (1889), 76 Mich 358, 367. The Supreme Court gave its most recent consideration to the question concerning the way in which statutory enactments affect the inherent power of courts to punish for contempt in Cross v. UAW Local No. 155 (AFL-CIO) (1966), 377 Mich 202. In Cross, the trial judge found in contempt certain striking workers who had disobeyed his injunction against illegal picketing, designed to cool off a heated industrial dispute. The trial judge imposed on each individual defendant a monetary fine and a jail sentence, with a proviso for an additional jail sentence to be served if the fine was not paid. The Supreme Court held that the proviso for the additional jail sentence was outside the scope of the statute then in effect, and vacated that portion of the sentence. The court in Gross concluded that, even though a court’s power to punish for contempt has been conceived of as inherent and not created by statute, where the legislature has laid down prescriptions for the punishment of contempt, courts must act within the framework and limits of the statutory enactment. Thus here we are confronted with the prescription of § 1715 of the Revised Judicature Act that: “Punishments for contempt may he by fine, which shall in no case exceed the sum of $250.” After having given careful consideration to this problem, we conclude that this specific language of § 1715 of the Revised Judicature Act limits the amount of a fine imposable for a single finding of contempt to the maximum of $250, and that therefore a court may not within the scope of this section calculate a fine by multiplying amounts of $250, as the court by its order here has done. We recognize the problem that this limited amount may not in given cases carry sufficient compulsion against a contumacious individual before the court. But at the same time we recognize the potential for abuse where the imposable fine is not subject to limitation. We do not, of course, suggest that a court could not make a subsequent finding of a reiterated or continuing contempt and impose the maximum statutory' fine for such subsequent contempt. But, following the rationale of the Supreme Court in Cross v. UAW, supra, we conclude that the power of the trial court to impose a fine for a single finding of contempt is subject to the limitation contained in the explicit language of the statute. Accordingly, the multiplying factor contained in the court’s order must be deleted, and the fine imposed is reduced to the statutory maximum of $250. Defendant further challenges the court’s order to pay damages to the Hill and Valley Corporation. The court’s order stated: “It is further ordered that said defendant city of Flint shall pay damages to Hill and Valley, a Michigan corporation, in the amount of $150 per day, and payment of said damages shall continue each and every day that defendant continues to refuse to obey said order. And said damages shall commence this date, March 31, 1967.” Specific authority for such an award of damages is provided by § 1721 of the Revised Judicature Act (MCLA § 600.1721; Stat Ann 1967 Rev § 27A.1721): “If the alleged misconduct has caused an actual loss or injury to any person the court shall order the defendant to pay such person a sufficient sum to indemnify him, in addition to the other penalties which are imposed upon the defendant. The payment and acceptance of this sum is an absolute bar to any action by the aggrieved party to recover damages for the loss or injury.” The city of Flint’s failure to comply with the court’s order to hook up its sewer system to plaintiff’s apartment development was clearly the direct cause of tlie expense incurred by the plaintiff in hiring the use of the “honey dipper” trucks which, until the city finally complied with the court’s order and hooked up its sewer on April 9,1967, made daily trips to plaintiff’s development to haul away the daily outpouring of sewage from plaintiff’s apartment buildings. The sewage had poured out from the apartment buildings into open pits located on the development grounds. The court fixed the amount of damages at $150 per day, an amount determined according to the testimony of a witness at the show-cause hearing which resulted in the finding of contempt. Defendant challenges both the validity of the award and the determination of the amount; but § 1721 of the EJA, quoted above, gives explicit authority for the award, and on remand the circuit court may determine the exact amount of expense incurred by the plaintiff as a result of the defendant’s failure to comply with the court’s injunction. Affirmed in part, reversed in part, and remanded to the circuit court for a reduction of the fine to the statutory maximum of $250 and a determination of the exact amount of damages caused to the plaintiff by the defendant’s contempt. No costs, a public question being involved. All concurred. The plaintiff developer brought this action ashing the court to declare in him a right to hooh up the sewer of his apartment development to the city sewer line free of charge by virtue of certain covenants contained in deeds he tooh from his predecessor in title. This issue was settled before trial. What remains, therefore, is defendant’s appeal from the court’s order of contempt for failure to comply with the court’s temporary injunction. See GOB 1963, 808, for provisions concerning stay of proceedings in the Court of Appeals ,and the Supreme Court. See the helpful “Practice Commentary” concerning the contempt power by Carl S. Hawkins, following § 1701 of the Revised Judicature Act, in which Professor Hawkins expresses his opinion that “It is useless to generalize about the civil or criminal nature of contempt proceedings”. MCLA § 600.1701, See generally the discussion of the nature of contempt proceedings with many eases cited at 17 CJS, Contempt, §§ 60-62(1), pp 137-160; 17 Am Jur 2d, Contempt, §§ 62-64, pp 62-65. For the history of these statutes, see the historical notes following § 1701 and § 1715 of the Revised Judicature Act, MCLA §§ 600.1701, 600.1715 (Stat Ann 1962 Rev §§ 27A.1701, 27A.1715).- For a general discussion of the eontempt power hy the Michigan Supreme Court, see Nichols v. Judge of Superior Court of Grand Rapids (1902), 130 Mich 187; In re Huff (1958), 352 Mich 402, 435, 416. CL 1948, § 605.20 (Stat Ann § 27.530), now brought forward in the Revised Judicature Act as CLS 1961, § 600.1715 (Stat Ann 1962 Rev § 27A.1715). See the comment: “Reiterated Contempt of Court” 62 Mich L Rev 1061.

Per Curiam. On May 23, 1968, the defendant was tried in Recorder’s Court, without a jury, on the charge of felonious assault contrary to CL 1948, §750.82 (Stat Ann 1962 Rev § 28.277). He was convicted, and, on June 19, 1968, he was sentenced to a term of one to four years’ imprisonment. On appeal it is contended that the trial court abused its discretion in the examination of witnesses to the extent that the trial lost its adversary nature, and further, that the defendant was not afforded a presumption of innocence. The people have filed a motion to affirm the conviction. "We have examined the record and we have discovered that the facts do not support the issues raised here on appeal. It is manifest.that the questions sought to be reviewed are unsubstantial and require no argument or formal submission. The motion to affirm the conviction is granted.

Holbrook, J. Plaintiffs are parents of a mentally retarded child who was formally committed to the Lapeer State Home and Training School by the Wayne county probate court in January, 1957, and are within the classification of relatives liable for the care and maintenance of their child under the provision of PA 1965, No 335 (MCLA § 330.651 et seq., Stat Ann 1365 Cum Supp § 14.870[101] et seq.). Pertinent portions of this act are reprinted in the footnote. Plaintiff brought this action against the Department of Revenue of the State of Michigan, in the circuit court for Wayne county, claiming that the act was unconstitutional for several reasons and requesting relief from its threatened enforcement. Both parties moved for a summary judgment stating that there was no issue of fact present in the case and that the matter could be disposed of by ruling on the law. After being furnished thorough briefs by all counsel and hearing arguments, the learned trial judge found the act unconstitutional for several reasons. The State of Michigan appeals. We need consider here only two reasons asserted concerning unconstitutionality of the act. Some of the other aspects of the case are. considered in our opinion in the case of In re Raseman Estate (1969), 18 Mich App 91, to which we make reference. The plaintiffs, in the trial court and here, assert that the reimbursement statute violates the equal protection clauses of our State and Federal Constitutions. In the recent case of Fox v. Employment Security Commission (1967), 379 Mich 579, 588, 589, Mr. Justice T. M. Kavanagh states: “This Court has held numerous times that the Michigan Const 1908, art 2, § 1, secures the same right of equal protection as does its counterpart in the Constitution of the United States. Gauthier v. Campbell, Wyant & Cannon Foundry Company (1960), 360 Mich 510, 514, and cases therein cited. The same provisions in Const 1963, art 1, §§ 1 and 2, must likewise be held to afford the same rights as the Federal equal protection clause. “There is no doubt that State legislatures have a broad range of discretion in establishing classifications in the exercise of their powers of regulation. However, the constitutional guarantees of equal protection are interposed against discriminations that are entirely arbitrary. In determining what is within legislative discretion and what is arbitrary, regard must be had for the particular subject of the State legislation. There must be a relation between the classification and the purposes of the act in which it is found.” Smith v. Cahoon, Sheriff (1931), 283 US 553, 566 (51 S Ct 582, 587, 75 L Ed 1264, 1274); Morey v. Doud (1957), 354 US 457, 465 (77 S Ct 1344, 1350, 1 L Ed 2d 1485, 1491); Beauty Built Construction Corporation v. City of Warren (1965), 375 Mich 229; Palmer Park Theatre Company v. City of Highland Park (1961), 362 Mich 326. In the case of People v. Chapman (1942), 301 Mich 584, a statute of this State was challenged as un'con stitutionally denying the defendant therein equal protection of the laws. Justice Starr, writing for the Court, stated (pp 597, 598): “It is well recognized that the legislature may make classifications of persons, provided such classifications are based on substantial distinctions and are in accord with the aims sought to be achieved. (Citing cases.) However, such classification must be neither arbitrary nor capricious, but must rest on reasonable and justifiable foundations. In Haynes v. Lapeer Circuit Judge (1918), 201 Mich 138, p 141, the rule is stated: “ ‘ “Legislation which, in carrying out a public purpose for the common good, is limited by reasonable and justifiable differentiation to a distinct type or class of persons is not for that reason unconstitutional because class legislation, if germane to the object of the enactment and made uniform in its operation upon all persons of the class to which it naturally applies; but if it fails to include and affect alike all persons of the same class, and extends immunities or privileges to one portion and denies them to others of like kind, by unreasonable or arbitrary subclassification, it comes within the constitutional prohibition against class legislation.” ’ “See, also, Davidow v. Wadsworth Manfg. Co. (1920), 211 Mich 90, 97-102; Peninsular Stove Co. v. Burton (1922), 220 Mich 284, 286; Smith v. Wayne Probate Judge (1925), 231 Mich 409.” (Emphasis supplied.) The legislature, under the provisions of the act, endeavored to require those of the class liable to reimburse the State in accord with their financial ability to do so. By making the net taxable income as shown by their Federal income tax return the criteria for the amount of reimbursement in all cases (insofar as maximum payment is concerned) the legislature has actually permitted an opposite re- suit. Our Federal income tax law has several legal economic incentive provisions exempting actual income of a taxpayer from being included in net taxable income inter-alia, all interest income from municipal bonds, 1/2 of income profit derived from long term capital gains, and partial depreciation credit and income depletion allowances for those in certain businesses. The inclusion of such actual income not reflected in net taxable income would require many of sufficient ability to reimburse the maximum amount set forth in the act even though their net taxable income may be less than $5,000. It is obvious that any reimbursement statute such as the one under consideration, to be uniform, should not exclude relatives who have actual ability to reimburse. A formula should not be tied to net taxable income shown by a Federal tax return that permits those of greater financial ability to reimburse the State less than others of lesser financial ability in the same class. It permits those more able to pay to reimburse the State less or possibly nothing at all. We find that PA 1965, No 335 does not accomplish the purpose of the act, i.e., to fairly and uniformly charge those of sufficient ability to reimburse the State in a reasonable manner. Many illustrations of this truth can be made but we deem them unnecessary. Net taxable income under the Federal income tax law does not properly reveal the financial ability of the relative to be charged to reimburse the State for the costs of maintaining the patient. We conclude that the act is arbitrary, unreasonable and in conflict with the equal protection clause of our constitution and therefore is invalid. The plaintiffs also assert that the act is unconstitutional in that there is lack of due process in its operation. The legislature has provided for liability, total or partial, on a formula based on the net taxable income of a relative as shown by his or her Federal income tax return. The law determining net taxable income of any individual is controlled by the Congress of the United States. Thus the legislature has delegated to the Congress the ultimate determination of the amount to be reimbursed by each such relative. In Auditor General v. Hall (1942), 300 Mich 215, 224, Mr. Justice Butzel stated: “In far more traditional forms of action both criminal and civil, length of sentences and the amount of damages may vary materially before different judges and juries. As long as there is not an abuse of discretion and a judge remains within the limits of the law, we find there is due process. In re Brewster Street Housing Site (1939), 291 Mich 313, 340, we approved of the following citation from Cincinnati, W. & Z. R. Co. v. Commissioners of Clinton County (1852), 1 Ohio St 77, 88, 89: “ ‘The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.’ ” In the case of Dearborn Independent, Inc. v. City of Dearborn (1951), 331 Mich 447, it is stated on pp 454, 455, as follows: “The requirement in said statute, above italicized, of admission by the post-office department as a second-class mail matter would make the validity of the publication of legal notices depend upon the future as well as present regulations of the United States post-office department. In that respect it offends against the Constitution of our State (1908), art 5, § 1, which, among other things, provides: “ ‘The legislative power of the State of Michigan is vested in a senate and house of representatives.’ “The act in question unlawfully attempts to delegate to the United States post-office department the determination of the qualifications of a newspaper to publish legal notices. See King v. Concordia Fire Ins. Co. (1905), 140 Mich 258 (6 Ann Cas 87), (syllabus 5) as follows: “ ‘The Michigan standard policy law of 1881 (Act No 149), providing for an insurance commission and authorizing it to prescribe a standard form for fire insurance policies, is unconstitutional because attempting to delegate legislative powers in violation of section 1 of article 4 of the Constitution.’ “At the time of the decision in the King Case the Constitution of 1850 was in effect, which, however, contained substantially the same delegation of the legislative power (Const 1850, art 4, § 1) as we have above quoted from the Constitution of 1908, which latter was in effect when the statute, above quoted (CL 1948, § 691.611), was enacted and also when the said statute was amended in 1933 in the form above quoted. See, also, In re Brewster Street Housing Site (1939), 291 Mich 313, in which, at page 340, the King Case, supra, is cited as establishing the law in this State upon the subject of unconstitutional delegation of legislative power. See, also, Colony Town Club v. Unemployment Compensation Commission (1942), 301 Mich 107, 113. “ ‘The State legislatures cannot delegate their sovereign powers to the Federal government. While a statute is valid which adopts existing statutes, rules, or regulations of Congress by reference, an attempt to make future regulations of Congress part of the State law is generally held to be unconstitutional.’ 16 CJS, p 343. “ ‘Since under the doctrine of the separation of the powers of government the lawmaking function is assigned exclusively to the legislature, it is a cardinal principle of representative government that except when authorized by the Constitution — as may be the case in reference to municipal corporations— the legislature cannot delegate the power to make laws to any other authority or body [citing decisions in 30 States]. Any attempt to abdicate legislative power in any particular field, although valid in form, is unconstitutional and void.’ 11 Am Jur 2d, pp 921, 922, § 214.” Also, see, Sutherland Statutory Construction, § 520, p 551. Although we realize that the Congress may not know or consider its direct power or discretion to vary liability under the act, it still violates the fundamental requirement of constitutional due process and for this reason is invalid. The trial court ruled the act unconstitutional for other reasons which we deem unnecessary to consider, except to note that the statute fails to provide for a notice of hearing and a hearing before the administrative agency to determine in the first instance the liability of the relatives. Limited to the reasons set forth in this opinion, we affirm the trial court in its determination that PA 1965, No 335 is unconstitutional and invalid. No costs, the construction of a statute being involved. Lesinski, C. J., concurred. “An act relating to the liability of relatives for the care and maintenance of mentally retarded persons admitted to public institutions; and to prescribe the powers and duties of certain public officers. * * * “See. 2. Notwithstanding the provisions of sections 9a, 11, 13, 18, 18a or 19 of Act No 151 of the Public Acts of 1923, as amended, being sections 330.19a, 330.21, 330.23, 330.28, 330.28a and 330.29 of the Compiled Laws of 1948, or the provisions of section 2 of chapter 1 of Act No 146 of the Public Acts of 1925, as amended, being section 401.2 of the Compiled Laws of 1948, or the provisions of Act No 146 of the Public Acts of 1925, as amended, being sections 401.1 and 401.21 of the Compiled Laws of 1948, the liability of any relative for the care and maintenance of a mentally retarded person shall be imposed and determined only in accordance with the provisions of this act. * * * “See. 4. The husband, wife, father and mother of a mentally retarded person shall jointly and severally be liable to the state for the care and maintenance of the committed mentally retarded person until he is 21 years of age or until he has been a patient in a publie institution for a total period of 15 years, whichever first occurs. “Por the purposes of this section, in the case of an adopted mentally retarded person, ‘father’ and ‘mother’ mean the adopting father and mother. * * * “Sec. 6. Within 30 days after admission of the patient or the effective date of this aet, whichever is later, the relative shall file the signed, completed form with the department of revenue. The form shall be accompanied by a signed copy of the relative’s most recent ineome tax return submitted to the United States internal revenue service. The department of revenue shall bill the relative for the amounts of liability determined under the provisions of this aet from the date of admission of the patient or the effective date of this act, whichever is later, through the succeeding June 30. Payments of the amounts shall be made monthly. The first payment shall be made by the end of the month after the mailing of the bill and cover the monthly liability through the end of that month as determined under the provisions of this aet. “Sec. 7. The form shall contain the name of the patient; the name of the institution to which the patient has been admitted; the name and address of the relatives liable for the care and maintenance of the patient under the provisions of this aet; the schedule of liability set forth in section 8; the net taxable income of the relative last reported to the United States internal revenue service for federal ineome tax purposes; the names and ages of dependents of the relative; and sueh other information as may be required by rules adopted by the department of revenue. “See. 8. (1) The amount of monthly liability of a relative for the care and maintenance of a mentally retarded person under the provisions of this act shall be originally determined by use of the following schedule: Net Taxable Monthly Income Liability Net Taxable Monthly Income Liability $ 0 to 4,999 0 $12,500 to 12,999 95 5.000 to 5,499 20 13.000 to 13,499 100 5.500 to 5,999 25 13.500 to 13,999 105 6.000 to 6,499 30 14.000 to 14,499 110 6.500 to 6,999 35 14.500 to 14,999 115 7.000 to 7,499 40 15.000 to 15,499 120 7.500 to 7,999 45 15.500 to 15,999 125 8.000 to 8,499 50 16.000 to 16,499 130 8.500 to 8,999 55 16.500 to 16,999 140 9.000 to 9,499 60 17.000 to 17,499 150 9.500 to 9,999 65 17.500 to 17,999 160 10.000 to 10,499 70 18.000 to 18,499 170 10.500 to 10,999 75 18.500 to 18,999 180 11.000 to 11,499 80 19.000 to 19,499 190 11.500 to 11,999 85 19.500 to 19,999 200 12.000 to 12,499 90 20.000 and over 210 “See. 10. If the relative believes that the monthly liability as determined by the sehedule does not accurately reflect his current income status or his ability to pay due to changed circumstances or otherwise, the relative may request at any time a determination of liability by the department of revenue. Bor purposes of the determination, the department of revenue may request the relative to supply all relevant financial information and such additional information as may be provided by rules of the department of revenue. After review of the information, the department of revenue shall establish the monthly liability of the relative. If the relative is dissatisfied with the determination, he may appeal the determination to the probate court of the county of residence of the patient. The probate court shall then determine the liability. In no case may the liability determined by the department or by the probate com-t exceed that established by the schedule. Appeals from the determination of the probate court may be made as in other cases. 11. (1) a care maintenance of a patient fails to pay the amount due, the commissioner of revenue may petition the probate court of the county of residence of the patient .and thereupon the court may forthwith issue an execution in the amount so stated and the same shall bo directed to any sheriff or constable of any eounty in the state or the commissioner of Michigan state police. An execution shall not be issued by the probate court if an appeal as provided by section 10 is pending before the probate court and shall not bo issued until at least 15 days from the final determination of the appeal by the probate court and the final determination of tho court is not obeyed by the relative. In addition the commissioner of revenue may bring an action at law wherever the liable relative resides or may be found to recover the amount of payments which the liable relative is delinquent in paying. Before the commissioner of revenue can bring this action of law under this section, he shall be required to show that the relative liable under this act was notified by certified mail of his liability and that a period of at least 15 days has lapsed between the notification date and the date of the commencement of action as provided by this section. The costs of such jiroceedings shall be assessed against the relative only if the relative is held to be liable under the provisions of this act. “(2) If a liable relative fails to file a form, the monthly liability of the relative is deemed to be $210.” In re Baseman Estate, ante, p 91. Trellsite Foundry & Stamping Company v. Enterprise Foundry (1901), 365 Mich 209.

Levin, J. The defendants were convicted of first degree murder in separate trials in the summer' of 1967. They appeal, claiming that they were denied their' constitutional and statutory right to a speedy trial. On the same day in May, 1966, that the first-degree murder warrant for the defendants’ arrest was issued, they were arrested in Illinois on an armed robbery charge. They remained in Illinois until January, 1967, when, after having been convicted of armed robbery, they were released by Illinois to Michigan and returned to this State to stand trial. The United States Supreme Court recently enunciated the standard by which defendants’ claim is to be adjudicated. In Smith v. Hooey (1969), 393 US 813 (89 S Ct 575, 21 L Ed 2d 607, 614), the defendant was, as were the defendants here, detained in one state while facing an untried charge in another state. The court held that, upon the accused person’s demand, the state where the untried charge is pending has “a constitutional duty to make a diligent, good-faith effort to bring him” to trial. Measured by that “diligent, good-faith effort” standard, the defendants were not denied a speedy trial. No claim is made that the prosecutor did not act diligently after formal extradition proceedings were instituted in the fall of 1966. The delays wbicb occurred after tbe return of tbe defendants to Michigan were attributable to pretrial motions and procedures initiated for tbe most part by tbe defendants. We are persuaded, contrary to tbe defendants’ main contention, tbat tbe Michigan authorities acted with sufficient diligence during tbe period between May, 1966 (when tbe defendants were first detained in Illinois) and fall, 1966 (when formal extradition proceedings were instituted). Tbe chronology of events during this 6-month period follows: May 11, 1966 — first-degree murder warrant issued at tbe request of tbe Macomb county prosecutor. On tbe same day tbe defendants were arrested in Evanston, Illinois, on tbe Illinois armed robbery charge. May 13 — a Macomb county assistant prosecutor interviewed tbe defendants in Evanston, Illinois, and learned they wished to be returned to Michigan as soon as possible. May 23 — tbe assistant prosecutor telephoned Illinois officials who informed him tbat tbe defendants would be tried for armed robbery in Illinois. June 6 — a letter from Illinois confirmed the May 23 telephone conversation and stated that the defendants would be tried in Illinois on June 23, 1966. June 23 — -the assistant prosecutor was informed by telephone that the Illinois trial had been postponed until July. Early July — the assistant prosecutor learned by telephone that the Illinois trial had again been postponed. July-September — the assistant prosecutor made no further inquiries. September 8 — the assistant prosecutor received a letter stating that the defendants had pled guilty on September 7, 1966, to the Illinois charge and had been sentenced to serve 2 to 6 years. September 22 — the assistant prosecutor wrote Illinois authorities giving notice of his intention to begin extradition proceedings. October 10 — the assistant prosecutor telephoned the governor’s office in Lansing to familiarize himself with extradition procedures. November 3 — the necessary papers were forwarded from Macomb county to the governor’s office. During this 6-month period both defendants made several inquiries by mail concerning the delay in extradition. Defendant Ferrazza filed a petition for a writ of habeas corpus with the Macomb county circuit court. The delay in the extradition of the defendants appears to have been unavoidable. The uniform criminal extradition act, which both Illinois and Michigan have adopted, allows a State which has custody of a fugitive on a pending charge to “hold him until he has been tried and discharged or convicted and punished.” Clearly, Illinois had the right to keep the defendants until they were tried in Illinois. The Macomb county officials early made known their desire to have the defendants returned to Michigan. Every communication between officials of Illinois and of Macomb county during the summer of 1966 indicated Illinois’ intention of detaining the defendants until they had been prosecuted for armed robbery. The Macomb county officials had every reason to believe that Illinois would not consent to extradition before trying the defendants on the armed robbery charge. While they might have begun formal extradition proceedings at an earlier date, neither their failure to do so nor the few additional weeks’ delay due to the assistant prosecutor’s unfamiliarity with extradition procedures alters our impression upon the whole record that the prosecutor acted with reasonable diligence and in good faith, albeit unsuccessfully, in attempting to obtain custody of the defendants in the late spring and summer of 1966. This case is distinguishable from the cases decided in other jurisdictions which have been brought to our attention. In most of these cases the record showed total inaction by the prosecution although the defendants had already commenced serving the sentence imposed by the detaining State. In Smith v. Hooey, supra, for 6 years the state of Texas made no effort to bring the accused person to trial other than to send one letter to the detaining authorities. In Pitts v. North Carolina (CA 4, 1968), 395 F2d 182, the State failed for 15 years to take even the “slightest step” to procure a temporary release and a prompt hearing for the accused person. In People v. Winfrey (1967), 20 NY2d 138 (281 NYS2d 823, 228 NE2d 808), no effort was made for 4-1/2 years to obtain the accused person’s presence in New York; pertinent is the following observation of the New York Court of Appeals (p 142): “there is no contention that if such a request [to a sister state] is made and rejected a delay in bringing the prisoner to trial in New York occasioned by his foreign imprisonment would be unreasonable. The point is that in this case no effort of any kind was made.” In People v. Bryarly (1961), 23 Ill 2d 313 (178 NE2d 326), the prosecution had announced its intention to abandon the case after a co-defendant had been acquitted; for nearly five years there was no effort to initiate extradition proceedings. Similarly, see United States v. Reed (DC, 1968), 285 F Supp 738. Cf. State v. Johnson (1967), 13 Ohio Misc 79 (231 NE2d 353). Our finding that the prosecutor acted with reasonable diligence and in good faith makes it unnecessary for us to decide whether MCLA § 767.38 (Stat Ann 1954 Rev § 28.978), providing for a trial of persons detained in prison within six months, applies to a defendant incarcerated in another state. The Michigan statutes implementing the constitutional right to a speedy trial, as well as the constitutional provision itself, require no more than good faith and prompt action by the prosecution. Cf. People v. Hendershot (1959), 357 Mich 300, 303; People v. Castelli (1963), 370 Mich 147, 153; People v. Williams (1968), 9 Mich App 676, 682, 683, 687; People v. Farmer (1969), 16 Mich App 148, construing a different statute but on principle relevant in the application of MCLA § 767.38 as well. Defendant Whitney has raised an additional issue concerning the admission into evidence of a black wallet. The wallet was found on Ferrazza when he was arrestéd in Illinois. It contained false identification which had been used by the victim. The defendant now contends that the evidence should have been excluded as irrelevant and unduly prejudicial. No objection to the admission of the wallet was made at the trial. We recognize that we may, nevertheless, consider the objection now made and, if sufficiently impressed, order a new trial. The evidence of the defendants’ guilt was overwhelming. We are convinced that Whitney would have been convicted even if the wallet had not been admitted in evidence. Accordingly, timely objection not having been made, we decline further to consider this assignment of error. Affirmed. All concurred. MCLA § 750.316 (Stat Ann 1954 Rev § 28.548). US Const, Am 6; Const 1963, art 1, §20; MCLA § 768.1 (Stat Ann 1954 Rev § 28.1024); MCLA § 767.38 (Stat Ann 1954 Rev § 28-.978). After the formal extradition papers were mailed from Macomb eonnty to the governor’s offiee in Lansing on November 3, the assistant prosecutor telephoned Lansing on November 22 in an effort to expedite aetion. The extradition papers were mailed from Lansing to Illinois on November 22. On December 9 the assistant prosecutor telephoned Illinois to prod the Illinois officials and discovered that the required special agreement between the states had not been included. On December 12 the assistant proseeutor persuaded an Illinois official to send the special agreement. This was then forwarded to Lansing. On December 27 this agreement reached Governor Rom ney and on January 4, 1967, the signed agreement was sent back to Illinois. On January 10, the assistant prosecutor telephoned Illinois and was informed that the papers were being sent to the warden of the prison in which the defendants were incarcerated. On January 13, the assistant prosecutor telephoned the warden. On January 18, the assistant prosecutor was informed that the defendants had waived extradition. They were returned to Michigan on January 21. The defendants were arraigned on the complaint in Maeomb county on January 22, 1967. Counsel were appointed for them on January 23. Preliminary examination was scheduled for February 2. The defendants asked for a 60-day postponement and when the trial judge adjourned the examination for only 2 weeks (until February 14), the defendants brought an action for a writ of superintending control in the circuit court to compel the judge to grant the desired G0-day extension; this motion was denied. On March 10 the defendants were arraigned on the information. On March 27, the defendants moved to adjourn the trial for 60 days; the motion was granted and the trial was set for June 6. On June 5 the defendants moved to dismiss the charges because of the alleged denial of their right to a speedy trial; the motion was denied. Our disposition of the ease makes it unnecessary to consider or decide whether the defendants’ actions were sufficient to comply with the requirement of a formal demand for a speedy trial. See People v. Williams (1968), 9 Mich App 676, 688; People v. Nawrocki (1967), 6 Mich App 46, certiorari denied 389 US 942 (88 S Ct 304, 19 L Ed 2d 296). Where there has been inordinate delay in bringing an incarcerated accused person to trial, some courts have absolved him of the requirement of filing a demand for a speedy trial. Pitts v. North Carolina (CA 4, 1968), 395 F2d 182, 187; United States v. Chase (ND Ill, 1955), 135 F Supp 230; see, also People v. Darrah (1968), 29 App Div 2d 816 (287 NYS2d 494, 497). MOLA § 780.1 et seq. (Stat Ann 1954 Eev § 28.1285) ; Smith-Hurd Illinois Annotated Statutes, eh 60, § § 18-49. MOLA § 780.18 (Stat Ann 1954 Eev § 28.1285[18]). See Koch v. O’Brien (1957), 101 NH 11 (131 A2d 63); State v. Liakas (1957), 165 Neh 503 (86 NW2d 373, 377). See footnote 2. MCLA § 780.131 (Stat Ann 1969 Cum Supp § 28.969[1]). People v. Dorrikas (1958), 354 Mich 303, 316, 326; People v. Dickinson (1966), 2 Mich App 646, 653; People v. Kamischke (1966), 3 Mich App 236; People v. Besonen (1966), 4 Mich App 131, 141; People v. Jordan (1967), 7 Mich App 28, 32; People v. Walters (1967), 8 Mich App 400, 406. Cf. People v. Clarke (1962), 366 Mich 209, 213, 214.

Per Curiam. Plaintiff sought in her action below to impose a constructive trust on the assets of the estate of Arthur W. Glover. Plaintiff is the widow of Arthur W. Glover’s son, who was a beneficiary under his father’s will. Plaintiff also sought damages under CL 1948, § 702.55 (Stat Ann 1962 Eev § 27.3178 [125]) and the penalty provided by CL 1948, § 702.18 (Stat Ann 1962 Eev § 27.3178[88]). She appeals from the trial court’s order of judgment for defendant. The basis upon which the constructive trust was sought to be imposed was an alleged contract to make mutual wills, binding on the survivor, entered into by the testator and defendant, his wife. The record reveals that the sole evidence of this alleged agreement is the mutual wills of Arthur and Sarah Glover, which contained reciprocal, but otherwise identical, provisions. The wills do not contain an express agreement that they .are to be binding on the survivor. An agreement that mutual wills are to be binding on the survivor cannot be inferred from the identical and reciprocal provisions alone, but must be established by other evidence. Eicholtz v. Grunewald (1946), 313 Mich 666; Schondelmayer v. Schondelmayer (1948), 320 Mich 565. The burden of proof is on the plaintiff. Hammel v. Foor (1960), 359 Mich 392. A review of the record reveals that the trial judge’s finding that there was no evidence of the alleged agreement was not “clearly erroneous.” GCE 1963, 517. The trial court was also correct in ruling that jointly-owned assets of Arthur and Sarah Glover are not subject to the trust created by the testator’s will. See In re Renz’ Estate (1953), 338 Mich 347; Murray v. Kator (1922), 221 Mich 101. Plaintiff contends the trial court erred by admitting certain testimony in violation of the dead man’s statute in effect at the time of the trial. The trial court properly held that the plaintiff failed to adduce any evidence of an agreement. Since the plaintiff has failed to bear .the burden of presenting affirmative evidence in support of her allegations, the testimony in question, which was designed to rebut the allegations, need not be considered. The trial court did not expressly rule on the claims asserted under CL 1948, § 702.55 (Stat Ann 1962 Rev § 27.3178[125]) and CL 1948, §702.18 (Stat Ann 1962 Rev § 27.3178 [88]). Plaintiff requests this Court to render a judgment in her favor on these claims. An action under CL 1948, § 702.55 must be brought by the executor or administrator of the estate. It is clear from the record that plaintiff is not the executrix or administratrix of Arthur Clover’s estate. The decedent’s will names defendant as the executrix of the estate. Plaintiff was not appointed administratrix ; nor does she claim this status. Therefore a judgment for defendant was proper as to this claim. CL 1948, § 702.18 authorizes the levy of a $10 per diem penalty on the custodian of a will for failure, without reasonable cause, to forward the will to the probate court within 30 days after the testator’s death. The trial court did not state its factual determination in regard to defendant’s alleged failure to file her husband’s will within the given period and the underlying reasons for the delay. CCR 1963, 517.1 requires the trial court to state its fact findings and conclusions of law. Without knowing the factual basis upon which the trial court proceeded, it cannot be determined whether error was committed by not imposing the penalty. Accordingly, the judgment is vacated in part and the claim under CL 1948, §702.18 (Stat Ann 1962 Rev § 27.3178[88]) is remanded for the trial court’s statement of its fact findings. No costs are awarded, neither party having prevailed in full. CLS 1961, § 600.2160 (Stat Ann 1962 Rev § 27A.2160), repealed by PA 1967, No 263, § 2.

Per Curiam. Defendant Jerry Smith, was tried by a jury and convicted of assault with intent to commit rape contrary to MCLA § 750.85 (Stat Ann 1962 Eev § 28.280). On appeal he contends that certain comments of the prosecutor during rebuttal argument to the jury were so inflammatory as to deprive him of a fair trial. The appellee has filed a motion to affirm the conviction. The comments complained of were brought to the attention of the trial court, who held that they were proper arguments. Our examination of the brief of defendant, the motion to affirm and the record convinces us that the lower court was correct and that defendant did have , a fair and impartial trial. The question presented here on appeal is unsubstantial and requires no formal argument or submission. The motion to affirm the defendant’s conviction is granted.

Danhof, J. On March 11, 1965, David Cass, husband of Jane Cass, was killed as a result of a collision with one of defendant’s trains. On January 3, 1968, Jane Doan, formerly Jane Cass, started a suit individually against defendant for damages. This became No. 6085 on appeal. On March 25, 1968, an amended complaint was filed. On April 10, 1968, Jane Cass Doan was appointed administratrix of the estate of David Cass, deceased. On April 15,1968, an amended complaint was filed by Jane Cass Doan, administratrix of the estate of David Cass, deceased. On April 29, 1968, defendant filed a motion for accelerated judgment on the grounds that no action had been commenced against defendant by the administratrix and that any action by the administratrix was barred by the statute of limitations. On April 30,1968, a motion was filed to substitute Jane Cass Doan, administratrix of the estate of David Cass, deceased, as plaintiff in place of Jane Doan, formerly Jane Cass. On May 17, 1968, a motion was filed by plaintiff for leave to amend amended complaint and designate herself and sue as administratrix for the estate of David Cass, deceased. On June 24, 1968, the trial court by written opinion decided that Jane Cass Doan, as administratrix of the estate of David Cass, deceased, could not be added, substituted, or have the original complaint amended, so as to make her the real party in interest. He relied on Simonelli v. Cassidy (1955), 343 Mich 657, where it was held that a motion to amend so that plaintiff would appear as administrator of the estate of his deceased wife instead of in his individual capacity, made after the statute of limitations had run, introduced a new and different cause of action and was properly denied. On June 11, 1968, in a companion case (No. 6086 on appeal), plaintiff filed a complaint as administratrix of the estate of David Cass, deceased. On August 5, 1968, the trial court dismissed the case with prejudice, in conformity with its opinion of June 24, 1968. The plaintiff appealed the decisions in both cases. She contends that the general rule in the United States is that an amendment made after the statute of limitations has run, changing the capacity in which a plaintiff sues, does not change the cause of action so as to let in the defense of limitation and that many cases of actions for wrongful death have so held, Russell v. New Amsterdam Casualty Co. (CA8, 1962), 303 F2d 674; 74 ALR 1270-1274; 8 ALR2d 76-90. Plaintiff argmes that the majority rule should now be adopted in Michigan under our new court rules, GrCE 1963, 118. Subrule 118.1 provides: “Amendments. A party may amend his pleading once as a matter of course at any time before or within 15 days after a responsive pleading is served or, if the pleading is one to which no responsive pleading is required and the action has not been placed upon the trial calendar, he may amend it at ány time before or within 15 days after it is served. Otherwise, a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave shall be freely given when justice so requires. All amendments shall be filed in writing, .dated, and numbered consecutively. Unless otherwise indicated therein, an amended pleading shall supersede the former pleading.” (Emphasis supplied.) Subrule 118.4 provides: “Eelation Back of Amendments. Except for the purpose of demanding a trial by jury under subrule 508.2, the amendment relates back to the date of the original pleading whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” The committee note to subrule 118.4 states: “Relation Back. Subrule 118.4 contains a new provision which prevents relation back of an amendment for purposes of demanding a jury. There is no justifiable reason why a party who fails to make a proper demand should be allowed to circumvent the time limitation for jury demand by means of amendment. “The remainder of subrule 118.4 states the federal provision for relation back of amendments. Presently there is much Michigan case authority to the effect that a party cannot set up a new cause of action barred by the statute of limitations at time of amendment. This limitation on amendment lends itself to technical legalistic interpretations as to what is a cause of action, yet a court willing to grant permission to amend is apt to broaden the meaning of a cause in order to do it. The federal provision places the matter on the basis of certainty and fairness. A pleader under this rule will be allowed to amend if the amendment relates back to the conduct, transaction, or occurrence originally set forth. Thus the adverse party is not prejudiced, since he has been given notice of the matter originally pleaded. Once made a party to an action arising from a particular fact situation, he is aware that the original pleadings are subject to amendment, and he ought not be permitted to force his opponent into a legally different statement of the facts for the sole purpose of barring the claim. And too, the statute of limitations is satisfied, since a new set of facts cannot be added by amendment if the statute has already run.” Considering now the Simonelli Case, supra, relied on by the trial judg’e, we observe that it was a medical malpractice case wherein there were extended delays not attributable to defendant, and, more significantly, it was decided prior to the adop tion of the present court rules. Therefore, we do not consider it to he controlling in the instant case. We comment next on the two recent Michigan cases relied upon by plaintiff, LaBar v. Cooper (1965), 376 Mich 401, and Huizenga v. Yellow Transit Freight Lines, Inc. (1965), 2 Mich App 36. Defendant attempts to distinguish LaBar, also a medical malpractice case, by pointing out that even after amendment, which charged additional acts of negligence, the plaintiffs were the same, whereas in this case the plaintiff is trying to introduce a new plaintiff into the action whose claim is barred by the statute of limitations. The same may be said of Huizenga, a motor vehicle negligence case, which was remanded by this Court for reconsideration in light of the LaBar Case. Although recognizing the truth of defendant’s assertion that the plaintiff, individually, and plaintiff, as administratrix, are two separate legal entities, Jordan v. C. A. Roberts Company (1967), 379 Mich 235, (on rehearing, 1968), 381 Mich 91, this Court is not persuaded that that is determinative of this case. Our Supreme Court in LaBar quoted as follows from 1 Honigman & Hawkins, Michigan Court Eules Annotated (2d ed), page 416: “The relationship between the original pleading and a proposed amendment becomes important when the date of filing the amendment raises a question of limitations. The doctrine of ‘relation back’ was devised by the courts to associate the amended matter with the date of the original pleading, so that it would not be barred by the statute of limitations. But some restrictions had to be placed upon the doctrine, or claims clearly barred could be resurrected by pleading them in an amendment to an unrelated claim which was not barred. Previous Michigan cases had set this restriction in terms of whether the amended matter involved a new cause of action. “Subrule 118.4 is intended to introduce a more liberal and workable test, borrowed from the Federal rules. See committee comment (5), supra. The test is no longer conceptual, but rather functional. The amendment relates back to the date of the original pleading and, therefore, is not barred by limitations, whenever the claim or defense asserted in the amendment arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. It is thus beside the point that the amendment introduces new facts, a new theory, or even a different cause of action, so long as it springs from the same transactional setting as that pleaded originally. The new test satisfies the basic policy of the statute of limitations, because the transactional base of the claim must still be pleaded before the statute runs, thereby giving defendant notice within the statutory period that he must be prepared to defend against all claims for relief arising out of that transaction.” (Emphasis supplied.) The LaBar court said, “Federal courts uniformly hold that amendments, which conform to FECP 15, should be decided on their merits, not on technicalities. (Citations omitted.) “Under prior decisions, before adoption of the G-eneral Court Eules of 1963, we have generally followed the rule that an amendment which states a new cause of action is barred. (Citations omitted.) However, in adopting new court rules it was our intention to depart from some of the strictures of the old rule and to permit an amendment which arises ‘out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.’ G-CE 1963, 118.4. The test, therefore, is no longer whether an amendment states a new cause of action, but is whether it arises out of the conduct, transaction, or occurrence alleged in the original-pleading sought to be amended. From the effective date of the new court rules, the old rule cited in the cases immediately above was meant no longer to be followed. Accordingly, the new court rules govern in this case.” (Emphasis supplied.) Subsequent to the LaBar decision, the authors of Michigan Court Eules Annotated, supra, commented in the 1969 pocket parts, page 69 : “As an example of the operation of the former rule with respect to the ‘relation back’ of amended pleadings, see Talbot v. Stoller (1962), 366 Mich 296. Plaintiff was not allowed to amend her declaration for malpractice to include a claim that administration of a drug was unnecessary and done without proper tests. The amendment was held to introduce a new ‘cause of action’ which, therefore, would not relate back to the date of the original declaration and was consequently barred by the statute of limitations. “Under subrule 118.4, this amendment would clearly relate back, since the amended claim ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.’ Since the defendant was already. on notice that he must defend himself on his conduct in the pleaded transaction, the basic policy of the statute of limitations is satisfied, as pointed out in the text of the principal volume, without becoming involved in the difficulties of defining what constitutes a new cause of action.” Many of the cases cited in support of the general rule urged by plaintiff arrive at the conclusion that an amendment changing the capacity in which a plaintiff sues is not barred by the statute of limita tions because no new canse of action is' stated. This was the conclusion of the court in the case of Russell v. New Amsterdam Casualty Co., supra, which after reviewing the authorities, held that a wife who instituted a wrongful death action in her individual capacity could amend her complaint after expiration of the statutory period of limitations, without stating new facts as ground of action, so as to set up her right to sue in her representative capacity. The test under subrule 118.4 as set forth in LaBar, supra, makes it clear that whether or not a, new cause of action is stated in the amendment is no longer the question, but rather it is whether the amendment arises out of the conduct, transaction, or occurrence alleged in the original pleading sought to be amended. Under that interpretation of the new court rule, this Court reaches the same result that many courts in other jurisdictions have reached in the past when a plaintiff who sued individually in a wrongful death action sought to amend his pleadings after the running of the statute of limitations so as to sue in his representative capacity. This Court does, however, approve the limitation appearing in 63 Harvard Law Review 1177, 1239, cited in Russell, supra: “However, * * * where the plaintiff sues in the wrong capacity some courts have experienced considerable difficulty in avoiding the objection that the original action was void, and have thus disallowed the change of the party plaintiff. Nevertheless, the new plaintiff is today usually allowed to take advantage of the former action if the original plaintiff had, in any capacity, either before or after the commencement of suit, an interest in the subject matter of the controversy.” (Emphasis supplied.) The record in this case discloses that the plaintiff is the widow of the deceased. As such, she has an interest in the instant action, because a portion of any damages which might result if the defendant is liable would be payable to her under the provisions of the death act as the widow. MCLA § 600.2922 (Stat Ann 1962 Bev § 27A.2922[2]). Neither party has discussed the question whether the trial court abused its discretion in denying plaintiff’s second amendment. The trial judge stated in his opinion, and is supported by the record, that “No reason was presented to this court as to why this suit was not started by the administratrix in the first instance. During the three-year period it would have been relatively simple to have had Mrs. Doan appointed and this action started properly.” As said before, subrule 118.1 states: “Leave [to amend] shall be freely given when justice so requires.” The authors of Michigan Court Buies Annotated, supra, commented in the 1969 pocket parts, page 70: “Merely because subrule 118.4 allows an amendment to relate back to the time of the original pleading does not, of course, decide the question of allowing the amendment. The delay in pleading the amended matter may be inexcusable, or the amendment may complicate or delay the proceedings or prejudice the position of a party to an extent justifying a denial of permission to amend, or requiring a continuance to be granted as a condition of permitting the amendment. See Scott v. Cleveland (1960), 360 Mich 322.” This Court holds that subrule 118.1 imposes a limitation on the discretion of the trial court in denying, leave to amend necessitating a finding that justice would not be served by the amendment, Burg v. B & B Enterprises, Inc. (1966), 2 Mich App 496; see also LaBar, supra; Dahlstrom v. City of Whitehall (1968), 14 Mich App 349. Reversed and remanded for proceedings consistent with this opinion. All concurred. GCK 1963, 118 is patterned after federal rule 15. See also Speiser, Recovery for Wrongful Death, Seetions 11:41, 11:42.

Levin, J. Defendant was convicted by a judge, sitting without a jury, of taking indecent and improper liberties with a girl under the age of 16 years. MCLA § 750.336 (Stat Ann 1954 Rev § 28-.568). At the time the alleged offense was committed, the girl was ten years of age and the defendant was an invited guest in her home. The child’s parents were also- at home. The testimony showed that the defendant entered the child’s bedroom, sat on the edge of the bed, kissed her several times on the mouth and neck and put his tongue in her mouth. The trial judge found that there was no attempt or request to take other liberties. Kissing can be sexual or nonsexual. In our culture, kissing, unaccompanied by other sexual overtones, is not generally regarded as indecent even if the person kissed or, in the case of a young child, the parents of that child, regard the kissing as objectionable. Thus, the defendant’s action in kissing the young girl on her lips and on her neck which might well be regarded, under the circumstances, as indiscreet, was not indecent within the meaning of this statute. Tlie people stress tire testimony which, showed that additionally the defendant while kissing the girl inserted his tongue in her mouth. This was not such a variation from permissible, uoncriminal conduct to justify characterization of the defendant’s action as violative of this statute at least where, as here, there is no claim or evidence that the defendant solicited or otherwise touched the child sexually. "We are convinced that the defendant’s conduct was not the kind the legislature had in mind when it made the taking of indecent and improper liberties a crime for which a man may be sentenced to up to 10 years’ imprisonment. The question of what constitutes the lowest threshold of criminal conduct under this statute is one of law to be decided by the court; the minimum standard is not a question of fact. Undoubtedly there are those who would regard the defendant’s actions as indecent, but we cannot say that their evaluation is so universally held that it can properly be termed the “common sense of society.” People v. Hicks (1893), 98 Mich 86, 90. Beversed. The defendant is discharged. Bronson, J., concurred. There is nothing in the agreed statement of facts upon which this appeal was submitted to sujjport a determination that the defendant's actions, even if thought to be indecent and improper liberties, were motivated by a desire to gratify himself sexually or by an immoral intent or purpose. Compare People v. Lakin (1938), 286 Mich 282, People v. Szymanski (1948), 321 Mich 248, 251, 252, and People v. Healy (1933), 265 Mich 317, 319, with People v. Visel (1936), 275 Mich 77, 78, 79. Also cf. State v. Mathews (Mo, 1959), 328 SW2d 642, 644; Boles v. State (1946), 158 Fla 220 (27 So 2d 293) and Koch v. Commonwealth (Ky App, 1955), 290 SW2d 783, requiring proof of such intent under statutes, such as Michigan’s, not expressly requiring such proof. See, also, State v. Richmond (1966), 266 NC 357 (145 SE2d 915) and Martin v. State (1963), 245 Ind 224 (194 NE2d 721), construing statutes expressly requiring proof of such intent. In this connection we note that in the cases relied on by the people the meritorious issue was decided by a jury and not by a trial judge. As we observed in Humphrey v. Swan (1968), 14 Mich App 683, 686: “Appellate courts traditionally exercise a broader review of judges’ decisions than of jury verdicts. “ ‘A jury’s verdict-view of facts is entitled to an even higher degree of appellate respect than is a judge’s verdict-view of the same facts, learned through the judge may be in law. For reasons known well to students of American history, a finding of fact by “the twelvers” is more apt to be sound than that of one man.’ Schneider v. Pomerville (1957), 348 Mich 49, 54.”

Per Curiam. The parties involved were divorced on August 16,1966, and custody of their three minor children was awarded to the mother. Later the fa ther petitioned the court for a change of custody. On September 23, 1968, a full hearing was had and the court amended the divorce judgment and awarded custody of the children to the father. Plaintiff appeals from this determination. The legislature has established the public policy of this state by providing that a child under the age of 12 years should be left in the custody of the mother and a child over the age of 12 years in the custody of the father under MOLA § 722.541 (Stat Ann 1957 Rev § 25.311). However, the legislature has provided that the statute is subject to the overriding consideration of what is for the best interest of the child. Accordingly, if the trial court sees fit to provide an order of custody contrary to that which is set forth in the statute, it may do so, specifically stating its reasons therefor. In this cause the trial court after a full hearing concluded the best interests of the children would be served by granting the father temporary custody. While the trial court did not find the plaintiff to be an unfit mother, the testimony showed that she did leave the children, ages 9, 8, and 5, alone on many occasions. One witness testified that the plaintiff had male visitors at all hours and on one occasion a male visitor stayed for 2 or 3 days. The trial judge was gentle in his comments concerning the plaintiff, but the record sustains the reasonableness of his opinion. Affirmed. As appellee did not file a brief no costs will be granted.