tirely different place at the time of the alleged seduction, and that it was relevant and competent to show the custom among the Polish Catholic people of making such presents at Christmas time, as corroborative evidence of his claim that he was at the home of the witness on the evening of December 21st, bringing a present to his godchild.

With reference to the general principle concerning the proving of a habit or custom, Mr. Wigmore, in his work on Evidence (vol. 1, § 92), says:

"Of the probative value of a person's habit or custom, as showing the doing on a specific occasion of the act which is the subject of the habit or custom, there can be no doubt. Every day's experience and reasoning make it clear enough." (Citing cases.) "There is, however, much room for difference of opinion in concrete cases, owing chiefly to the indefiniteness of the notion of habit or custom. If we conceive it as involving an invariable regularity of action, there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance. But in the ordinary affairs of life a habit or custom seldom has such an invariable regularity. Hence it is easy to see why in a given instance something that may be loosely called habit or custom should be rejected, because it may not in fact have sufficient regularity to make it probable that it would be carried out in every instance or in most instances. Whether or not such sufficient regularity exists must depend largely on the circumstances of each case."

So, in the instant case, we are of the opinion that the answer to the question was properly excluded, for the reason that it is too indefinite and uncertain what custom it was sought to establish, whether it was a custom as to the actions of this particular individual defendant or as to the habit of the devotees of the Catholic religion. The answer to the question was that he did this "just on a Christmas." The day to which the testimony is sought to be referred is December 21st, so it is also clear that he might have

conformed to the custom and still not have been present at the home of the witness at the time that the alleged seduction took place; and therefore, even if such a custom were established, it would have no real probative force to corroborate the testimony of the witness or defendant's own claim that he was at the home of the witness on the evening of December 21st. Other assignments of error relate to the admissibility of evidence which the trial court excluded, by which the defendant sought to show that at the time of the alleged seduction he was engaged to marry another girl, and that he appeared in public frequently with her, and that such engagement was known to his neighbors, friends, and acquaintances. The trial court excluded the testimony on the ground that it would not be competent unless such knowledge was brought home to the plaintiff's decedent before or at the time of the act complained of, and that even then it would only be competent as bearing upon the good faith of the claim of plaintiff's decedent that she relied upon the defendant's promise of marriage in consenting to the act. We are of the opinion that the court was correct in its ruling, and that this testimony was entirely immaterial unless knowledge of the same was brought home to the plaintiff's decedent, which the record does not disclose. Fisher v. Hood, 14 Mich. 189; Simons v. Busby, 119 Ind. 13 (21 N. E. 451). The court, in charging the jury, said:

"And while it would not be good in a breach of promise case for a man to say to a woman, 'If we have sexual intercourse and you get into the family way I will marry you,' in a seduction case that is good, that makes the case; the difference being that in a breach of promise case the promise must be a decent, respectable, legitimate promise of marriage, made by the one and accepted by the other to be made in good faith, that makes a breach of promise case. But in seduction, if a man says to a woman, 'You give up to me and if you get pregnant I will marry you,' and

she relies upon that and gives up to him, then that makes a cause of action for seduction."

Under the rule in this State there is no question that this is an incorrect statement of the law, as this court has held that the promise of marriage in a seduction case must be absolute, and not conditional. As was said in People v. Smith, 132 Mich. 58 (92 N. W. 776):

"Such a promise (a conditional one) has no tendency to overcome the natural sentiment of virtue and purity. The woman who yields upon such a promise is in no better position than as though no promise whatever had been made. * * * The commission of the offense cannot depend upon the happening of a subsequent event."

See, also, People v. Carlos, 183 Mich. 269 (149 N. W. 1006).

However, there was no such issue in this case, and our attention has not been challenged to any testimony in the record, nor have we been able to find any, to show that there was a conditional promise of marriage made to the plaintiff's decedent. She testified with reference to defendant's promises, as follows:

* * *

"He was always kissing me, and said we would always live together and we would get married and I should not be afraid. I believed what he said. I loved him, and he always told me that he loved me. He said we would both get married, right after Easter, I can't say what year. He said we would both get married and everything would be good with us. * * * On December 21, 1912, Tony promised to marry me, when he was talking me up to that. On December 29th he promised to marry me before and after we had intercourse. I believed him. That was the reason I did what we did.”

As it conclusively appears that the portion of the charge complained of had no application to the facts in issue in this case, it must be treated as surplusage, and it cannot be said to have been prejudicial error.

We have examined the assignments of error with

reference to improper argument of counsel, but are not impressed that anything that was said prejudiced the rights of the defendant or affected the result. Houser v. Carmody, 173 Mich. 121, 135 (139 N. W. 9); City of Kalamazoo v. Paper Co., 182 Mich. 476 (148 N. W. 743).

All other assignments of error having been examined and no prejudicial error being found in the record, the judgment is affirmed.

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

STATE BANKING COMMISSIONER v. E. JOSSMAN STATE BANK.

In re PETITION OF EDGAR.

1. BANKS AND BANKING-DEPOSITOR-TRUST DEPOSIT RECEIVERSDISSOLUTION OF A CORPORATION.

On petition of one of the depositors and creditors in a suit by the State banking commissioner to wind up an insolvent institution in which the petitioner, with four others, had a deposit in his name as trustee, it was permissible to show what were the real relations of the parties and the liability of the bank to the petitioner, for the purpose of setting off the indebtedness of the various interested beneficiaries, who were indebted to the bank in considerable sums of money: evidence tending to establish the real relations was competent in determining the question raised by a petition to compel the receiver to pay a dividend to the depositor.

2. SAME-INSOLVENT ESTATES-SET-OFF-EQUITY.

It is well settled in equity that deposits and notes of the

same parties in an insolvent banking institution may be set off against each other prior to the maturity of the notes in possession of the bank: the strict rule of set-off at common law not being applicable.

Appeal from Oakland; Smith, J. vember 10, 1914. (Docket No. 156.) 18, 1915.

Submitted No-
Decided March

A. K. Edgar filed a petition for a right to participate in the distribution of the dividends of the E. Jossman State Bank which was being wound up upon the petition of the State banking commissioner. From a decree denying the prayer of the petition petitioner appeals. Affirmed.

Davis & Bromley, for appellant.

Charles P. Webster, for appellee receiver of bank.

MCALVAY, J. The bill of complaint in this case was filed September 9, 1913, by the banking commissioner against this bank, its president, directors, and officers under the statute, it having become insolvent, for the purpose of the appointment of a receiver and for liquidating its assets. The matter proceeded in due course until February 9, 1914, when an order of the court was made authorizing the receiver to pay a first dividend of 20 per cent. to all creditors. The receiver refused to pay any of said dividend to “A. K. Edgar, trustee," the petitioner herein, and he thereupon filed the petition in this cause, praying for an order directing the receiver to pay over to him as trustee the amount of the dividend represented by him claimed to be due. The receiver answered this petition, and, the matter having been fully heard before the court, an order was entered denying the prayer thereof. Petitioner has appealed from this order.

Petitioner, claiming to be trustee for himself, E. L. Davis, Manly D. Davis, Edmund Foster, and R. E.