Case by Selig Solomon against H. Kimball Loud for fraud and deceit. Judgment for defendant. Plaintiff brings error.

Reversed.

Jahraus & Rawden (Joseph H. Cobb, of counsel), for appellant.

Henry, Henry & Henry, for appellee.

PER CURIAM. We consider only whether the trial court ought to have set aside the verdict of the jury and granted a new trial upon the motion of the plaintiff and appellant. In denying a new trial the court, among other things, said:

"The remaining grounds for a new trial are based upon the alleged misconduct of the defendant and his attorney in hiring one Joseph Eaton, a juror, 'to watch the jury and plaintiff and his counsel. From the affidavits submitted with the motion, and from what came to the knowledge of the court immediately after the trial, I find the facts connected with this incident as follows: Joseph Eaton was a juror, and was called on the jury in this case, examined and excused. While this trial was in progress, the attorney for the defendant employed Eaton 'to watch' the jury and the plaintiff and his counsel, to see that they did not tamper with the jury, under a promise to pay Eaton well for his services. Eaton told the attorney that if he, Eaton, was to be around with the jury,' he would need to spend some money, that he could not be 'around' with them, and not spend any money. Whereupon the attorney called the defendant to them and told him to let Eaton have some money; the defendant asked what it was for, and the attorney replied, Eaton knows, you pay him some.' Whereupon the defendant gave Eaton $2. It does not appear that the defendant knew what this money was for. This seems to be all the money that was paid to Eaton; what he did with this money does not appear. It does not appear that Eaton spent any money with the jury, or that he approached them in any way about the case, or endeavored to influence them, or tampered with them. The action of defendant's attorney in regard to juror Eaton was improper, and detrimental to the profession. Had it come to the knowledge of the court during the trial, a prompt and vigorous investiga

tion would have been made, and the matter dealt with as it deserved. But I am unable to find that this misconduct affected the jury on their verdict."

The facts so found are not in a material way disputed. We do not impute to defendant's counsel the purpose to influence the jury or to obtain a verdict or an advantage by unfair means. We attribute the conduct described to thoughtlessness rather than to improper motives. But it is apparent that, if the practice of hiring jurors to watch jurors is entered upon in trial courts, an intolerable condition must result. To say that in the particular case the hired juror did nothing to influence the jurors he undertook to watch and whose improper conduct he promised to report does not answer the indictment presented by the facts. The indictment is that an officer of the court charged equally with the court with the duty of administering the law is guilty of establishing commercial relations with a juror with respect to proceedings in court, knowledge of which relations must inevitably bring the court into disrepute and cause the integrity of its proceedings to be suspected. These consequences are not affected by the purpose of the attorney or of the juror employed by him. The evil thing was done when the contract relations affecting proceedings in the court were established between the attorney and the juror. The effect of the misconduct upon the determination of the particular case is not apparent. But when misconduct, calculated, if not intended, to have a generally pernicious effect upon legal proceedings, is traceable to the prevailing party in such proceedings, we are of opinion that reason appears for treating the trial as a mistrial and for setting aside the judgment.

The judgment is therefore reversed, and a new trial ordered.

PEOPLE'S SAVINGS BANK OF SAGINAW v. MOKAY.

1. MORTGAGES-PARTIES-EQUITY-DEMURRER-FORECLOSURE

MORTGAGES.

OF

In a suit to foreclose a mortgage, the husband, who claimed a homestead interest in the premises, occupied by the mortgagor and himself, was a proper party to the bill of complaint, although he did not join in executing either the mortgage or the collateral note; he was not entitled to try the questions involved before a jury on the law side of the court. 2. EQUITY-DEMURRER.

Special reasons in matter of substance are required by rule to be alleged in a general demurrer. Chancery Rule 9.

Appeal from Saginaw; Gage, J. Submitted October 16, 1912. (Docket No. 112.) Decided December 17, 1912. Rehearing denied February 18, 1913.

Bill by the People's Savings Bank of Saginaw against Emma McKay and John A. McKay to foreclose a mortgage. From an order overruling a demurrer to complainant's bill, defendant John A. McKay appeals. Affirmed.

Walter J. Lamson, for complainant.

John A. McKay, in pro. per.

KUHN, J. In this cause, the bill of complaint was filed to foreclose a mortgage securing a note made by Emma McKay. John A. McKay, her husband, is made a party defendant, although he did not execute either the note or mortgage, upon the theory that the mortgaged premises constitute the homestead of the defendants, in which he may have some interest or which he may have the right to redeem from the operation of the mortgage. He has demurred to the bill in substance and form as follows:

"(1) That the bill of complaint herein does not state a case of equitable jurisdiction.

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'(2) That the complainant has not in and by its said bill of complaint made or stated such a case as entitles it in a court of equity to any relief for or against this defendant or either defendant herein touching the matters or any of them contained in said bill.

"(3) That under the facts alleged and set forth in said bill of complaint the complainant is not entitled to the relief prayed for or to any relief whatever.

"(4) That the complainant's remedy under the state of facts set forth in its said bill of complaint is at law.

"(5) That this demurring defendant is entitled to a trial of the facts alleged in the bill of complaint herein by a jury on an issue framed according to the regular practice of the court in a case at law.

"(6) That the issues raised by the bill of complaint herein are as to this demurring defendant, and as to both defendants, properly triable at law.

"(7) That the proceedings herein are an attempt on the part of the complainant to deprive this demurring defendant, and each of said defendants, of his and their property without due process of law, and are contrary and obnoxious to both the Constitution of the State of Michigan and the Constitution of the United States, particularly the fourteenth amendment of the Constitution of the United States."

Chancery Rule 9 requires special reasons in matters of substance in a general demurrer, as well as matters of form in a special demurrer, to be set out. The only

special reasons given in the demurrer are that the action is triable at law and is an attempt to deprive defendant of constitutional rights, both of which were properly overruled by the trial court.

The order overruling the demurrer is therefore affirmed, with costs to the appellee.

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

HOLCOMB v. SAYERS.

1. BILLS AND NOTES-CHECKS - HOLDER IN DUE COURSE-GOOD FAITH.

Where plaintiff took for collection defendants' check given to the vendor of a horse purchased by defendants, and being a creditor of the vendor and holding his mortgage on the animal and on other property to secure it, gave him $50 in cash, and credit for the remainder of the check, but retained the mortgage lien on the horse, etc., plaintiff was not entitled to recover on the check as a holder in due course; and defendants were entitled to defend against an action on the check upon the theory that they had been defrauded and had rescinded the sale by returning the animal.

2. APPEAL AND ERROR-TRIAL BY COURT WITHOUT JURY. Findings of fact made by the court without a jury can only be overturned if there is a total want of evidence to support them or if they are contrary to the undisputed evidence.

Error to Superior Court of Grand Rapids; Stuart, J. Submitted October 15, 1912. (Docket No. 67.) Decided December 17, 1912.

Assumpsit by Martin H. Holcomb against Frank P. Sayers and another for the amount of a check. Judgment for defendants. Plaintiff brings error. Affirmed.

Colin P. Campbell, for appellant.

William B. Brown, for appellees.

KUHN, J. This case was tried before the judge of the superior court of the city of Grand Rapids, who made the following findings of fact and of law:

"(1) That on May 11, 1910, the defendant Edwin F. Sayers, of Grand Rapids, went to the residence of one John B. Bagley, who lived about two miles from the village of Pierson, in Montcalm county, for the purpose of buying a horse.