The case, in my judgment, comes expressly within the doctrine established by the following decisions of this court: Hine v. Railway Co., 115 Mich. 204 (73 N. W. 116); Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); McGee v. Railway Co., 102 Mich. 107 (60 N. W. 293, 26 L. R. A. 300, 47 Am. St. Rep. 507); Bennett v. Railway Co., 123 Mich. 692 (82 N. W. 518); Hilts v. Foote, 125 Mich. 241 (84 N. W. 139).

This is not a case for the application of the doctrine that plaintiff may recover, notwithstanding his own negligence exposed him to risk, if the injury was caused by the negligent act of the defendant after he had become aware of plaintiff's danger. Such a case was that of Laethem v. Railway Co., 100 Mich. 297 (58 N. W. 996), where plaintiff's milk sleigh stood close to the track while he was engaged in lifting a can out of his sleigh to transfer it to the sleigh of another. Neither is it the case of Ryan v. Railway Co., 123 Mich. 597 (82 N. W. 278), in which the plaintiff looked 75 or 80 feet, and judged that he had time to cross before a car would come. When one can readily see danger immediately threatening, and can easily avoid it, it is his duty to do so; and, if he is injured, he alone must bear the consequences.

The judgment is affirmed.

MONTGOMERY, C. J., HOOKER and LONG, JJ., concurred. MOORE, J., took no part in the decision.

WESTON v. GRAND RAPIDS PUBLISHING CO.

1. LIBEL-EVIDENCE-PROVOCATION.

In an action for libel, articles published by plaintiff as editor of a rival paper, reflecting on stockholders in defendant company, none of which related to the subject-matter of the libel complained of, and to which the libelous article could not be deemed a reply, were inadmissible to show provocation or to excuse the libel.

An article referred to plaintiff as president of the police and fire commission, and his statement that the people of the city had lost much money in slot-machine gambling during the past two years; inquired why he had not stopped it before; and concluded thus: "Who stopped 'putting up?' Who purchased immunity for this vice? How much did they pay? To whom was it paid?" No other person was mentioned in the article. Held, that it charged plaintiff with misconduct in office in accepting bribes, and that evidence of misconduct on the part of other members of the board, and of plaintiff's predecessors, was properly excluded.

Error to superior court of Grand Rapids; Wolcott, J., presiding. Submitted June 6, 1901. Decided October 1, 1901.

Case by William B. Weston against the Grand Rapids Publishing Company for libel. From a judgment for plaintiff, defendant brings error. Affirmed.

T. F. & W. R. McGarry (Kingsley & Wicks, of counsel), for appellant.

Burlingame & Belden (William E. Grove, of counsel), for appellee.

MONTGOMERY, C. J. Defendant published the following article, referring to the action of plaintiff as president of the police and fire board of Grand Rapids:

"WHO CAN EXPLAIN?

"President Weston, of the police and fire board, tells, in his personal organ, the Chronicle, how the poor people of this city have lost hundreds of thousands of dollars a year in slot-machine gambling during the past two years. Mr. Weston states that there have been at least 600 of these slot machines in use, and that some of them have made for their owners as high as $1,200 a year. Mr. Weston admits that practically this condition of affairs has existed for at least two years. He tells tearfully of laborers losing their money in these slot machines until their families have been left in need,' and of 'children wasting pennies and nickles upon the selfish little tempters.' Then he tells how board, grocery, and market bills have gone unpaid because of the slot machines. This may all be true; but what the people on the streets and in the shops are wondering and talking about is why, if it was all so terrible, it was not stopped before. How could President Weston allow such a terrible state of affairs to run along month after month, when he could have stopped it months or years ago, as well as this month? Who stopped 'putting up? Who purchased immunity for this vice? How much did they pay? To whom was it paid?"

A large number of articles were admitted in evidence, which were published by plaintiff, as editor of a rival paper, which cast aspersions upon the defendant company, its stockholders and managers. These articles in no way referred to slot machines, and the court admitted them only as bearing upon the question of malice. Other articles published by plaintiff, reflecting on individual stockholders in defendant company, were offered by defendant, but were excluded. None of these articles related to the same subject-matter as that contained in the libel complained of. The libelous article could in no sense be deemed a reply to the articles offered in evidence. The articles, therefore, were not admissible as tending to show provocation or to excuse the libel. See Brewer v. Chase, 121 Mich. 526 (80 N. W. 575, 80 Am. St. Rep. 527); Smurthwaite v. Publishing Co., 124 Mich. 377 (83 N. W. 116); Maynard v. Beardsley, 7 Wend. 560 (22 Am. Dec. 595); Newell, Defam. p. 519.

The court charged the jury that the article charged plaintiff with misconduct in office, and refused to admit testimony tending to show misconduct on the part of other members of the board and of plaintiff's predecessors. This ruling was correct. No other name is mentioned in the article, and it is difficult to conceive how any body could read it without understanding that it charged the acceptance of bribes by the plaintiff.

This discussion covers all the points made in appellant's brief requiring special notice.

The judgment will be affirmed.

The other Justices concurred.

FOSTER v. INGHAM CIRCUIT JUDGE.

CIRCUIT COURT COMMISSIONERS— MASTER IN CHANCERY-COMPENSATION.

3 Comp. Laws, § 11219, provides that circuit court commissioners shall be allowed a certain amount per folio for drawing every report, and the schedules annexed thereto, under an order of reference, and a certain amount for certifying each exhibit shown to a witness. A commissioner was appointed master in chancery to examine the account of a bank receiver, and make report to the court of his conclusions in relation thereto. There was no contest, and all the vouchers and exhibits had been filed with the court, and were part of the records. The commissioner swore the receiver, and took down his testimony, which he returned with his report, but which he was not required to do under the order. Held, that the commissioner acted in a judicial, and not in a ministerial, capacity, his duty being to pass on the receipts and expenditures, and determine their legality; and that he was not entitled to the compensation fixed by the statute for taking such testimony and certifying to the exhibits.

Mandamus by Charles W. Foster, circuit court commissioner of Ingham county, to compel Howard Wiest,

circuit judge of said county, to allow a claim for compensation. Submitted September 24, 1901. Writ denied October 1, 1901.

The receiver of the Central Michigan Savings Bank tendered his resignation, and filed his account with the circuit court for the county of Ingham, in chancery. His resignation was accepted, and the relator, a circuit court commissioner, was appointed as master in chancery to examine said account, and make report to the court "of his doings in the premises, and of his conclusions as to such matters of account.' He was authorized by the order to examine witnesses, if necessary. The account extended over several years, and involved an examination of many vouchers and exhibits,-1,002 in number. There was no contest. The relator swore the receiver and his clerk, and took 951 folios of testimony, which he returned with his report. The vouchers and exhibits had all been filed with the court, and were part of the records in the Upon filing his report, the court, through Judge Person, the then circuit judge, entered an order allowing relator $315 for his services. Subsequently he presented to the court a petition for further compensation. This claim consisted of the following items:

case.

951 folios in the commissioner's report, at 20 cents

The court refused to allow the two items for 951 folios and for certifying 1,002 exhibits. The relator asks the

writ of mandamus to compel their allowance.

Charles F. Hammond, for relator.

Rollin H. Person, for respondent.