ship board settled all claims of the township against defendant Adelbert Kirsten, as its treasurer, and against defendants Hyman Joseph and De Witt Wilson, as sureties on his official bond, both arising on said bond, and otherwise, and then and there accepted the promissory notes of said Joseph and said Wilson, due in one year thereafter, whereby all action upon said bond became suspended until such notes were due, and whereby all remedy upon said bond became superseded, and for the purpose of showing that said township has no right of action against said Joseph and Wilson, arising out of said suretyship, until said notes became due, to which offer counsel for plaintiff objected as incompetent, irrelevant, and immaterial, which objection was by the court sustained, for the reason that the township board had no power to make such a settlement as the one set forth in the minutes of the meeting, to which ruling counsel for defendants then and there excepted; the record of which proceedings so offered in evidence and so excluded upon objection is in the words and figures following: “APRIL 20, 1887. At a meeting of the township board, duly convened and held. Present, Charles W. Bahel, supervisor; A. R. Vanderwoort, justice of the peace; A. Assal, township clerk. Absent, Frank Buell, justice of the peace. Board called to order by C. W. Bahel in the chair. The business of the meeting was stated to be the adjustment of the matter caused by the default of A. Kirsten, the outgoing treasurer, to account for the balance of $2,485.98 found to be due the township on settlement with said treasurer. In adjustment of said matter it was moved and supported that we accept the notes of the bondsmen of said treasurer for the sum of $368.50 each, payable in one year from date, together with the agreement to the effect that, if there is no error discovered in the collection of the taxes of 1886 made by said treasurer, the said treasurer shall be released from the payment of the sum of $300, making the amount of the shortage of $1,037.71. Motion carried. Moved and supported that the supervisor take charge of the notes given by the bondsmen of A. Kirsten. Carried. Moved and supported that we adjourn sine die. C. W. BAHEL, Supervisor. A. ASSAL, Township Clerk." The insufficiency of the defense under which this proof was offered is that it nowhere appears that the claim of the township for the balance of $1,037.71 against Kirsten was either disputed or doubtful. Kirsten had received this amount of money, which he had not accounted for or paid over as required by law, and the township board had no legal authority to release either Kirsten or his sureties on his bond from his and their legal obligation to pay the amount to the township. The action of the board was, in effect, making a gratuity to Kirsten of over $300 of the township's money, without necessity, right, or authority. Tax-payers might justly complain of such action as an illegal perversion of the township's money. Had it been a disputed claim, or if there had existed any well-grounded apprehension as to the legal liability of the bondsmen for the debt, it might have afforded grounds for a compromise. No reason appears for the extraordinary action of the board taken on the 20th of April, but the record shows that on the 22d of April a full board was duly convened, and by a unanimous vote it was resolved that counsel be employed, and suit brought upon the bond, thus ignoring, as well they might, the action taken on the 20th. This is a much stronger case than that of Toumship of Boardman v. Flagg, 38 N. W. Rep. 284, decided at the last term, where a settlement had been made, and a balance struck, which the township treasurer paid over to his successor. Afterwards it was ascertained that he had collected moneys belonging to the township, which did not appear upon his books, from which the settlement was made, and was not included in the settlement, and it was held that the township clearly had the right to recover the inoney still remaining in the treasurer's hands, and that the township was not estopped by the settlement made by the township board. Error is also assigned upon a question, which was permitted to be put to a juryman when being selected to try the cause, by the plaintiff's attorney, as follows: "Suppose, at the close of the testimony, it was equally balanced as between the plaintiff and defendants, which side would you be inclined to favor?" The juryman answered: "Well, I think I should favor the sureties. I won't be certain. I think so." "9 The counsel afterwards challenged this juror peremptorily, and he was excused. The point was decided in Monaghan v. Insurance Co., 53 Mich. 238, 246, 18 N. W. Rep. 797. The judgment of the circuit court must be affirmed. The other justices concurred. LOBDELL et al. v. HORTON. (Supreme Court of Michigan. October 19, 1888. SALE WHEN TITLE PASSES-PROVINCE OF JURY. In an action for the price of lumber agreed to be paid for according to the mill tally, as fast as sawed, where the logs were burned before they were sawed, it was properly left to the jury to say whether title had passed. Error to circuit court, Mecosta county; C. C. FULLER, Judge. Assumpsit by Albert W. Lobdell, Moses Berridge, and George R. Slosson, against Thomas G. Horton, for $671.21, balance due on goods sold. Judgment was entered on a verdict for defendant, and plaintiff brings error. L. G. Palmer and N. W. Bush, for appellants. Frank Dumon, for appellee. CHAMPLIN, J. Plaintiff brought assumpsit to recover on an account for goods sold and delivered. The declaration was upon the common counts. The defendant pleaded the general issue, with notice of set-off. On the trial defendant admitted the correctness of plaintiff's claim, subject, however, to be reduced by such set-off as he should be able to prove. The main contention was over a quantity of hemlock logs, which defendant claimed to have sold and delivered to plaintiffs, and for which the plaintiffs were to pay him $2.75 for each thousand feet, as soon as they were sawed, according to the mill tally. The plaintiffs, on the contrary, claimed that the transaction was not an absolute sale, but was intended as a security for an indebtedness which defendant owed to them. The testimony in support of the theory of each party was properly submitted to the jury by the court, and they found in accordance with the defendant's theory. Plaintiffs' claim that, because the logs were not to be paid for until the lumber was sawed and tallied, so as to ascertain the quantity, that the title did not pass. The pith of the question lies in the fact that before the logs were sawed they were mostly destroyed by fire. We have often decided that whether the title passed or not, where something remained to be done before the exact amount to be paid could be arrived at depended upon the intention of the parties, and was a proper question of fact to be determined by a jury. Upon this point the charge was explicit, and we see no occasion for disturbing the verdict. The judgment of the circuit court must be affirmed. The other justices concurred. AVELING . NORTHWESTERN MASONIC AID ASS'N. (Supreme Court of Michigan. October 19, 1888.) INSURANCE-PROOF AND PAYMENT OF LOSS-BENEFICIARIES-RESIDUARY DEVISEE. A will giving to one person certain property "and all other property of which I shall die seized," passes a life insurance under a certificate, payable "to the devisees, or, if no will, to the heirs," though nearly, if not all, of the property of the insured, except the insurance is specifically named in the bequest. Error to circuit court, Wayne county; C. J. REILLY, Judge. E. H. Flinn, and W. I. Culver, (E. F. Conely, of counsel,) for appellant. Oscar M. Springer, (Henry A. Chaney, of counsel,) for appellee. MORSE, J. The defendant is a corporation organized and existing under the laws of the state of Illinois. March 5, 1885, it issued to Robert Aveling a certificate of insurance, in which it agreed to pay the sum of $2,500 upon his death "to his devisees, or, if no will, to the heirs at law of said Robert Aveling." Robert Aveling died on the 21st day of February, 1887, leaving the following last will and testament: "I, Robert Aveling, of the township of Springwells, county of Wayne, state of Michigan, being in good health and sound mind and memory, do make this my last will and testament: I will, devise, and bequeath all those certain lots, known as lots 115, 116, 117, and 118 of J. W. Johnson's subdiv. of the east half of private claim 78, in the township of Springwells, joining the city of Detroit, north of the Chicago road, so called; also the undivided one-half of lot 124, same subdivision, with all the appurtenances thereon. I also devise and bequeath all other property of which I shall die seized, real, personal, and mixed, especially all money in Detroit Savings Bank and Wayne County Savings Bank, Detroit, Mich.; all bonds and notes and stocks to Richard Aveling, of the city of Detroit, county of Wayne, state of Michigan, to him, his heirs and assigns forever. Witness my hand and seal at aforesaid. [Signed] ROBERT AVELING. [Seal.] Signed, sealed, and declared to be the last will and testament of the testator, in our presence and in the presence of each other, who at his request have signed our names as witnesses, this * * * * * [Signed] "JOHN THOMAS. * This will was admitted to probate in Wayne county, May 10, 1887, and on the same day his brother, the plaintiff, was duly appointed administrator of his estate, with the will annexed. He demanded of the defendant payment to himself of the entire sum due on the certificate. Payment being refused, he brought this suit. He recovered in the court below. The suit is defended by the defendant on the sole ground "that the certificate of insurance does not make the right to the insurance depend upon the accident of being named in the will as devisee of something else, but that it confers upon the insured a power of appointment under or by virtue of which he may designate in his will the devisee or devisees of his insurance. In case the insured fails to exercise this power of appointment, the insurance passes directly to his heirs at law." It was shown upon the trial that the deceased left surviving him one sister and the children of a deceased sister. It will be seen by the will that the plaintiff is the sole devisee of all the property of the decedent. But it is argued that, although he is the sole and general devisee, the testator in his will specifically named most of the property, if not all, of it bequeathed to plaintiff, and made no mention of the insurance, thereby showing no intent to will it to him, as the words "shall die seized" would not include the insurance, as he did not die seized of it; that such insurance would not pass to his administrator, nor would it be included in a general devise of his estate, as it constituted no part of his estate at the time of his death. While, technically speaking, the decedent may not have died seized of this insurance, we are satisfied that he intended to pass his insurance, as well as all of his other property, to the plaintiff. The circuit judge was right, and the judgment will be affirmed, with costs. The other justices concurred. PEOPLE v. MURRAY. (Supreme Court of Michigan. October 19, 1888.) 1. CRIMINAL LAW-EVIDENCE-FLIGHT OF Accused. In a prosecution for rape, evidence that, when arrested, defendant was found in a back yard behind barrels, where he had gone, as alleged by him, upon personal necessity, but, as alleged by the prosecution, for the purpose of concealment, and that he denied his name when questioned, is improperly admitted, where he asserts that, by reason of intoxication, he knew nothing of the crime, and where it does not appear that he knew the officers, or that he was charged with the crime, or that a warrant had been issued. 2. SAME-APPEAL-REVIEW-GENERAL SUPERVISORY POWER Of Court. Where it is doubtful whether, by reason of intoxication, defendant was not ignorant of his acts, and the female was but slightly injured, and told of the occurrence only after the use of threats, and complaint was made by no member of her family; and where it appears that defendant was not vigorously defended, and many improper and prejudicial questions were asked of him while testifying; that in the charge defendant's evidence was not properly referred to, and it was stated that defendant fled, but neither the testimony, nor the rule of law applicable thereto, was given, and that the sentence was to 50 years' imprisonment,-the supreme court, under its general powers of supervision, will set aside the proceedings. Error to circuit court, Kalamazoo county; GEORGE M. BUCK, Judge. William N. Cook, (Osborn & Mills, of counsel,) for appellant. Moses Taggart, Atty. Gen., and F. E. Knappen, for the People. SHERWOOD, C. J. The respondent in this case was convicted in the Kalamazoo circuit on the 28th day of February, 1888, of the crime of carnally knowing and abusing a young girl under the age of 14 years, and was sentenced to imprisonment at Jackson for the term of 50 years. The evidence shows that the claimed rape was committed in a barn in the township of Brady, in Kalamazoo county, on the 7th day of January last, and that complaint was not made until the 20th day of February following, and then not by any member of the child's family. It appears from the record that the respondent was a young man about 23 years of age, and addicted to the use of intoxicating liquor to excess; that his parents lived at South Haven, and that he was accustomed to spend the winters at Mrs. Murray's, and had for eight or ten years past; that he had been at Mrs. Murray's about two weeks immediately preceding the commission of the offense charged, and on that day, if the testimony is to be believed on either side, he was so far intoxicated that it is doubtful if he knew what he did. It further appears that the offense as charged was committed in the day-time, about 2 o'clock in the afternoon; that the girl, though not yet 11 years old, was not seriously injured, and that she would not even tell her mother of what occurred until she had been threatened with punishment if she did not do so; that at the time the offense was committed the girl was attending school, and that she continued her school the same after as before the assault upon her occurred. And upon her examination she testified when first interrogated that respondent did not hurt her, but subsequently said he did, and her undergarments were stained with blood. There was no medical examination ever made. The only examination made by any one, as the record shows, was by an aunt of the girl, who, in her testimony, says she found the parts disturbed somewhat inflamed, but the girl did not show anything of the injury in her walk. It further appears that the respondent is cousin to the girl, and that whenever before he had been in the family he was uniformly kind to the children; and the mother of this girl accounts for his criminal conduct towards the child upon the ground he was so far intoxicated that he did not know what he was doing at the time, and does not believe he would have committed the act if sober. From all the testimony it is quite apparent that the physical injuries the child received on the occasion were slight, and if the common-law rules were to be applied, the act shown by the proofs would scarcely reach the grade of the crime charged, and such as it was it seemed not to have excited any great amount of concern or anxiety in the family, as no member thereof made any complaint, and not until the neighbors learned of what had occurred was any action taken in the matter. Upon the trial the record discloses that the respondent was not very vigorously defended at the circuit. But two exceptions were taken to any rulings in receiving the testimony. Several were, however, made to the charge. In this court the whole record has been gone over by able counsel upon both sides, and our attention has been earnestly challenged to such errors as have been assigned. All the proceedings had and testimony taken at the circuit are before us. To the general management and conduct of the people's case before the jury, and which are claimed by counsel for the respondent to have been such that no fair trial could be had, objection is now principally made. This view of the case was urged with much vigor and force by respondent's counsel, and a careful review of the whole proceedings has impressed us with the great impropriety and danger of the course pursued. The case does not show the aggravating circumstances which so frequently accompany criminal conduct of the character charged, and especially is this true when we consider the intoxicated condition of the respondent. While this cannot furnish any legal excuse for what he did, it has an important bearing upon the turpitude of the respondent, and the quality of his crime, and should have had an important influence in determining the extent of the punishment to be inflicted after conviction had. Such considerations, however, seem to have been entirely without weight with the court below, as is very clearly manifest from the extent of the punishment meted out to the respondent. The first objection taken to the testimony received by the court relates to the conduct of the respondent when the sheriff and his deputy arrested him at South Haven some two weeks after the crime was committed. This place was his home. It appears he was in the back yard of a saloon premises at the time, where he claims he had gone to urinate behind some barrels. The prosecution claimed he was there behind the barrels hiding away from the officers, and that when they appeared and asked if his name was Murray he denied it, but, on being asked the second time, he said it was Murray, and the officers arrested him, and brought him back to Kalamazoo county. This testimony was objected to. These facts were made prominent before the jury, both upon the trial and in the court's charge, as evidence of guilt. The respondent denied that he was hiding at the time, and it does not appear that he knew the sheriff or his deputy, or that there was a warrant out for him, or that he was charged with crime; and he always asserted, and his relatives believed, that he knew nothing of the liberties he took with the girl, and the sheriff had not yet informed him of the charge made. The other exception taken to the testimony offered and received relates to what occurred on the same occasion, and need not be further separately considered. Under the circumstances of this case the admission of this, and the use made of it, was prejudicial to the respondent, and it should not have been received. This disposes of the exceptions taken to the rulings relating to the testimony. Counsel for respondent, however, insist that our duty does not end here in disposing of these two exceptions to the testimony, but they ask that we shall consider the whole conduct of the trial, the manner the witnesses were examined, the character of the questions put, and their natural tendency to affect the jury prejudicially to the respondent, before we leave this subject; that they have placed all the proceedings had by which the conviction was brought about, and which has resulted in what they claim to be a life sentence, in effect, before us, and ask that we shall say whether or not the prisoner has had that fair and impartial trial guarantied to him by the law of the land. They ask us to pass upon this question as matter of right under our constitution and laws, whether objection was made, or exception taken or not, upon the trial; and if the record shall show that the court allowed proceedings so far illegal as to result in depriving the respondent of his liberty, or in the infliction of unusual punishment, that this court may give relief against such illegal proceedings. While this court cannot reverse a judgment or set aside the verdict upon a review of the facts, when such facts have been properly summitted to a jury, and will not ordinarily depart from such rules of practice as have been adopted as the results of the longest experience, |