circuit court, both parties appeared by their attorneys and announced themselves ready for trial, and both stated that no jury was desired. When the case was reached in its order, the attorney for plaintiff orally made a motion to dismiss the appeal for the reasons: (1) That no certified copy of the order of the probate court allowing the appeal had been filed in the court. (2) That no certified copy of the order of the allowance of the claim by the commissioners had been filed in the court, as required by section 9390, 3 Comp. Laws. No notice of this motion had been given; nor does the record show that any previous intimation was given that it would be made. The motion was argued on both sides and granted by the court, and the appeal was dismissed. Defendant excepted to the ruling of the court. The usual stay of proceedings was granted to allow a review in this court of the action of the trial An application for a writ of mandamus to set aside the order of the court was made to this court and denied, upon the ground that the proper remedy was by writ of error. The case is now before us upon such writ.

Appellant urges that, under the rules and practice of the circuit court (Circuit Court Rule 19), he was entitled to notice of the motion to dismiss the appeal, and that the court erred in hearing and granting such oral motion. Three of his assignments of error are based upon this contention. This was a special motion to dismiss the appeal, and appellant was entitled to the notice provided by Circuit Court Rule 19 before it could be brought on to be heard. He twice called the attention of the court to the fact that no notice had been given, and asked the court to be allowed to have the report of the commissioners on claims to be at once certified, if the court held it to be necessary. The record does not show that he waived the right to the usual notice under the rule. While, upon the argument, brought up suddenly without notice, his attorney appears to have been mistaken as to the necessity of having this report certified to the court, and may have had such view of the statute in mind when the appeal was taken, the

record indicates that before the argument closed he appreciated his error. The reason of the rule is to prevent surprise and to allow reasonable time to prepare for a hearing. Plaintiff had noticed the case for trial, and on the call of the docket had announced himself ready for trial, and when the case was called made this motion to dismiss, which the rule requires should be heard only after four days' notice. The court was in error in hearing the motion without notice.

We hold that it was necessary to file the certified copy of the report of the commissioners on claims; that being the record of the allowance appealed from. In Snyder v. Washtenaw Circuit Judge, 80 Mich. 511, this court said:

"We are disposed to give statutes allowing appeals liberal construction. * * * With this purpose we shall hold that an appeal properly claimed, perfected, and allowed in the probate court ought not to be dismissed for a failure to file the record in the circuit court within the 30 days, provided the same should be filed before the motion to dismiss is actually heard."

In the case at bar no motion has yet been properly before the court for hearing.

Plaintiff contends that no order was ever made by the probate court allowing the appeal. The order made by the probate court conformed with the requirements of the statute. It does not state that the appeal is allowed, but is certified by the probate judge as the order of the probate court allowing the appeal.

"It has come to be known as the order allowing the appeal, and in practice the order usually in terms allows the appeal, although, technically speaking, it cannot be disallowed if the statutory requirements are complied with." 2 Stevens on Michigan Practice, § 376.

The allowance of an appeal does not depend on the probate judge, but is a right fixed by statute. There is no occasion to obtain an order allowing an appeal. Fox v. Wayne Probate Judge, 48 Mich. 643.

The order in this case was sufficient, and a certified copy thereof had been filed.

The judgment dismissing the appeal is reversed, with costs, and the cause is remanded to the circuit court for further proceedings.

CARPENTER, BLAIR, MONTGOMERY, and OSTRANDER, JJ., concurred.

i

BURTRAM v. MICHIGAN CENTRAL RAILROAD CO.

RAILROADS-PERSONAL INJURIES-CHILDREN ON TRACK-FAILURE TO FENCE-YARDS.

A railroad company is not required to fence its yards and is therefore not liable for an injury to a child which strays upon the track within its yard limits by reason of the lack of a fence.

Error to Wayne; Rohnert, J. Submitted January 16, 1907. (Docket No. 41.) Decided April 30, 1907.

Case by Anthony Burtram, Jr., by next friend, against the Michigan Central Railroad Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error. Affirmed.

Washington I. Robinson, for appellant.

O. E. Butterfield (Henry Russel, of counsel), for appellee.

MCALVAY, C. J. Plaintiff, a boy five years old, by his next friend, sues defendant for injuries received upon

defendant company's tracks at Bay City Junction, in Detroit. He went upon defendant's premises from the highway near the junction of E street and Hubbard avenue. These streets do not cross the railroad right of way, but their junction forms a right angle, the company's right of way running along and being next adjacent to the west line of Hubbard avenue and the west end of E street, which abuts on said right of way. Formerly along this line of defendant's right of way there was a post and wire fence. Some of the posts are still there, but the wires are all gone, except some pieces hanging to the posts. On the trial, at the conclusion of plaintiff's case, a verdict was directed by the court for defendant, on the ground that the accident occurred within the yard limits of the company. Plaintiff appeals from a judgment entered upon the directed verdict.

The only negligence claimed is the failure of defendant to maintain the fence along its premises as provided by statute. From the undisputed facts, it appears that this was within the yard limits of defendant, where, under our decisions, defendant was not required to maintain a fence. Bird v. Railroad Co., 145 Mich. 706. See, also, the following cases relative to fencing station grounds and railroad yards: Flint, etc., R. Co. v. Lull, 28 Mich. 510; Chicago, etc., R. Co. v. Campbell, 47 Mich. 265; McGrath v. Railroad Co., 57 Mich. 555; Rinear v. Railroad Co., 70 Mich. 620; Stern v. Railroad Co., 76 Mich. 591; Grondin v. Railway Co., 100 Mich. 598; McDonald v. Railway Co., 113 Mich. 484; Rabidon v. Railway Co., 115 Mich. 390 (39 L. R. A. 405); Cornell v. Railroad Co., 117 Mich. 238; Katzinski v. Railway Co., 141 Mich. 75; Hamilton v. Railway Co., 142 Mich. 56.

The judgment of the circuit court is affirmed.

CARPENTER, BLAIR, HOOKER, and MOORE, JJ., con

curred.

PEOPLE v. MESSER.

1. EMBEZZLEMENT— -ELEMENTS-STATUTORY PROVISIONS-INFORMATION-SUFFICIENCY.

Section 11562, 3 Comp. Laws, creates two species of larceny, one which may be committed by the acts described by the word "embezzle," and another which may be committed by the acts described by "fraudulently convert to his own use;" and an information which charges that respondent, a bank cashier, "did feloniously embezzle” and “fraudulently convert" certain moneys of the bank to his own use, and did "feloniously steal, take, and carry away," etc., charges "embezzlement larceny" and is not made uncertain or double by the words "fraudulently convert."

2. SAME-BANK CASHIER-POSSESSION OF FUNDS-SUFFICIENCY OF ALLEGATIONS.

An information alleging that respondent was cashier of a bank and did embezzle its funds, sufficiently charges that he was in possession of the funds, since the office of cashier of a bank involves possession of its funds.

3. STATUTES-CONSTRUCTION-ADOPTION FROM SISTER STATE. The presumption that a statute adopted from a sister State brings its construction with it, does not apply to a construction given the statute in that State after its adoption here.

4. EMBEZZLEMENT-TRIAL-EVIDENCE-OTHER OFFENSES. On a prosecution for embezzlement under section 11562, 3 Comp. Laws, it is proper to admit evidence of other acts of embezzlement committed within six months after the time stated in the information, since section 11782, 3 Comp. Laws, permitting such practice, is remedial, and intended to apply to every act of embezzlement reasonably within its terms.

5. SAME

SEVERAL OFFENSES-ELECTION.

On a prosecution for embezzlement under section 11562, 3 Comp. Laws, respondent is not entitled to confine the people, in asking for a conviction, to the first act to which they direct their proofs.

6. SAME ARGUMENT OF COUNSEL-PREJUDICE.

Where a bank cashier is convicted of embezzling an amount of which no entry was ever made on the books, he is not prej