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by the constitution or the statutes, and the courts have no right to declare its use to be unlawful because it is possible or probable that those who are privileged to use it will misuse the privilege by attempting to propagate their own peculiar theological or ecclesiastical views and opinions. The point where the courts may rightfully intervene, and where they should intervene without hesitation, is where legitimate use has degenerated into abuse-where a teacher employed to give secular instruction has violated the constitution by becoming a sectarian propagandist. . . . . The section of the constitution which provides that 'no sectarian instruction shall be allowed in any school or institution supported, in whole or in part, by the public funds set apart for educational purposes,' cannot, under any canon of construction with which we are acquainted, be held to mean that neither the Bible nor any part of it, from Genesis to Revelation, may be read in the educational institutions fostered by the state."

The court also wisely noted that sectarian instruction might occur from frequent reading, even without 631 note or comment, of "judiciously selected passages," and observed that whether such practices existed as amounted to sectarian instruction must be determined upon the facts of each particular case. We find ourselves in entire accord with the views quoted above from the response of the Nebraska supreme court.

In Board of Education v. Minor, 23 Ohio St. 211, 13 Am. Rep. 233, the only question presented or decided was whether the school board might not prohibit the reading of the Bible in the public schools. It was held that they could; that nothing in the laws of that state made it compulsory upon the boards or teachers to use the Bible as a text-book.

We believe the reason and weight of the authorities support the view that the Bible is not of itself a sectarian book, and, when used merely for reading in the common schools, without note or comment by teachers, is not sectarian instruction; nor does such use of the Bible make the schoolhouse a house of religious worship.

The judgment of the circuit judge, having been in accord herewith, is affirmed.

Judge Cantrill, absent.

Petition for rehearing by appellant overruled.

A Teacher who, to Quiet the Pupils and Prepare them for their work, repeats the Lord's prayer and the Twenty-third Psalm as a morning exercise, without response, comment or remark, the only demand on the pupils being that they should demean themselves in an orderly manner, does not conduct a form of religious worship or teach sectarian or religious doctrine: Billard v. Board of Education, 69 Kan. 53, 105 Am. St. Rep. 148, and see the note thereto on religious and sectarian teaching in the public schools.

CASES

IN THE

SUPREME COURT

OF

MICHIGAN.

SMITH v. HOCKENBERRY,
[146 Mich. 7, 109 N. W. 23.]

CRIMINAL CONVERSATION-Trial-Instructions.-If, in an action for criminal conversation, the charge of the court makes the whole case turn upon the sole question of whether the defendant was guilty of the act of intercourse alleged, and the defendant disclaimed any theory of conspiracy, and the jury finds for the plaintiff, a refusal to charge that collusion cannot be inferred from certain facts appearing in the case is not prejudicial to the plaintiff. (p. 616.)

CRIMINAL CONVERSATION - Condonation - Mitigation of Damages. In an action to recover for criminal conversation, the fact that the plaintiff has continued to live and cohabit with his wife after learning of the wrong may be considered in mitigation of damages. (pp. 616, 617.)

CRIMINAL CONVERSATION-Evidence of Character of Wife-Mitigation of Damages. In an action to recover for criminal conversation, evidence tending to show the criminal intimacy of plaintiff's wife with other men, her association with women of bad repute, and of her general reputation for chastity, is admissible in mitigation of damages. (p. 617.)

CRIMINAL CONVERSATION - Evidence of Character of Wife-Mitigation of Damages. In an action for criminal conversation, evidence that plaintiff's wife consulted counsel in regard to bringing suit before plaintiff did, offered solely for the purpose of showing the depravity of plaintiff's wife and as tending to show that the alleged criminal conversation was brought about by her under circumstances indicating that discovery was expected, is admissible in mitigation of damages. (p. 618.)

CRIMINAL CONVERSATION-Evidence. In an action for criminal conversation a female witness having testified to seeing the defendant and plaintiff's wife in a compromising situation, it may be shown that such witness had stated that there was an understanding between herself and plaintiff's wife to get money out of the defendant. This is not collateral matter, but bears directly upon the truthfulness of the witness, and tends to show a conspiracy. (p. 618.)

Q. A. Smith, O. J. Hood and G. Huggett, for the appellant. L. H. McCall, F. A. Dean and G. C. Fox, for the appellee.

8 MONTGOMERY, J. This is an action for criminal conversation. The case was before the court at the October term of 1904, and is reported in 138 Mich. 129, where a sufficient statement of the main features of the case is given. It was there held that on the record as there made there was no proof to sustain defendant's claim that the plaintiff connived at his wife's criminal intimacy with the defendant, and that the wife's alleged statements to witnesses that her husband knew of her intimacy with other men were incompetent. It was also held that testimony relative to the criminal intimacy of plaintiff's wife with other men before the act in question was competent, But that testimony as to her after-conduct was not. The case has been tried anew, and a verdict of twentyfive dollars for plaintiff rendered. The plaintiff brings error.

The record contains forty-one assignments of error. Error is assigned on a refusal of a request which in substance directed the jury that collusion could not be inferred from certain facts appearing in the case. As the charge of the court made the case to turn upon the sole question of whether the defendant was guilty of the act of intercourse as alleged, and as the defendant disclaimed any theory of conspiracy, and, what is more conclusive, as the jury found for the plaintiff, it is altogether clear that the refusal of this request should not now be complained of.

The plaintiff requested the court to charge that: "The fact that the husband, after learning of the wrong that he had suffered, did not break up his home or drive his wife therefrom or apply for a divorce, but condoned her offense, is no bar to his action against the defendant for any wrong committed by him."

This was given with the addition of these words: "It may lessen the damages, but does not take away the right of action, and the damages, if any, are for you to find, if you reach that branch of the case."

It will be seen that the question is thus presented whether the condonation of the wife's offense by the husband may be considered in mitigation of damages. Plaintiff's counsel cite, in support of the claim that such testimony is not to be received in mitigation, Heermance v. James, 47 Barb. 120, which was a case in no wise like the present. The question in that

case was whether the act of defendant, in influencing the plaintiff's wife to refuse to recognize or receive the plaintiff as her husband or to live with him as his wife, was actionable. The holding of the court was that an action would lie for this wrong, even though the wife continued to live in the house with her husband. It was with reference to this situation that the language used in the brief of counsel was employed, viz: "Her remaining with him under the circumstances would rather add the provocation of insult to the keenness of suffering. It would continue before him a present, living, irritating, aggravating, if not consuming, source of grief, which even her absence might, in a measure, relieve."

On

It is obvious at a glance that the court was not there dealing with the question here involved. The authorities bearing directly upon this question are not numerous. Some English cases are said to hold condonation a bar: 3 Encyclopedia of Evidence, p. 795. The current of authority is not so. principle, however, we hold that the fact that the plaintiff has continued to live and cohabit with the wife is a circumstance to be considered in mitigation. 10 The declaration in such case usually, as in the present, contains a charge of loss of the society, fellowship, and assistance of the wife. Why should it not be competent to show that this was not the case for any considerable time? Morning v. Long, 109 Iowa, 288, 80 N. W. 390; Ball v. Marquis, 122 Iowa, 665, 98 N. W. 496. We think the instructions of the court fair in all respects.

The court permitted evidence of the conduct of Mrs. Smith prior to the act charged, including testimony tending to show criminal intimacy with other men, and also tending to show association with women of bad repute. This latter testimony is claimed to have been incompetent on the ground that plaintiff, while he might be expected to meet testimony of reputation of his wife, could not be prepared to meet attacks upon the character of his wife's associates. We think the testimony was admissible. Not only is it competent to show the previous reputation of the wife, but distinct acts of immorality may also be given in evidence: 3 Encyclopedia of Evidence, 796. This was so decided when this case was here before. Testimony of intimate association with lewd women clearly bears upon the question of her chastity. The testimony of the previous acquaintance and intimacy of the witness Stevens and plaintiff's wife was competent for the like purpose. The question asked of the witness Mary Boyer as to

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