of salary, which he claimed he should be credited with, and upon that item the burden of proof rested upon defendant.

The charge of the court imposed the burden of proof upon the plaintiff only in so far as its bill of particulars was concerned; and we do not find in the charge a like statement relative to this item of set-off. There was no specific request to charge to that effect; and we think that its omission was not prejudicial error, as it is evident from the verdict of the jury that the item for claimed increased salary was not allowed defendant.

The balance claimed by plaintiff against defendant in its bill of particulars was $119.16, which, as already stated, was the amount of the judgment recovered by plaintiff in justice's court, with a small amount for interest added. The disputed item of $146.36, if credited to defendant, would leave plaintiff indebted to him in the sum of $27.20, which was the exact amount of the verdict found by the jury in his favor.

The two last assignments of error upon portions of the charge remain to be considered. The first of these relates to a part of the language of a long paragraph of the charge of the court to the jury relative to the preponderance of evidence, the province of the jury, and its duty relative to weighing and considering the evidence in the case, in which he said, among other things, that the preponderance of the evidence was not determined by the number of witnesses, and that, if the jury believed any witness had falsely testified in any material point, it would have the right to disregard the entire testimony of such witness. This was not erroneous. As to the second, counsel has already discussed it under the twenty-ninth assignment of error and the sixth and seventh requests to charge, which we have already considered and passed upon against the contention of appellant.

The next assignment of error relates to a request made by defendant's attorney that the jury be permitted to take plaintiff's bill of particulars into the jury room. This, at

the time, was objected to by counsel for plaintiff and refused. It is contended that this request of defendant's counsel was prejudicial conduct. We do not agree with counsel. Such a request is not unusual in the trial of jury cases; and later in this case this bill of particulars was, by consent of appellant's counsel, submitted to the jury before verdict.

Error is also assigned upon the charge of the court given to the jury, upon a return for additional instructions after being out for a time. These instructions cover a page of the record; and part of it is a repetition of the substance of the charge already given, the objections to which have all been passed upon. We find no prejudicial error in this charge.

The other errors assigned all relate to the refusal of the court to grant a new trial. This motion being founded upon the contentions of plaintiff, as set forth in the assignments of error which have been discussed in this opinion, it follows, from our conclusions already expressed, that the court was not in error in denying the motion for a new trial.

As we find no prejudicial error in the case, the judgment of the circuit court is affirmed.

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

HEINTZEN v. GAULT.

1. DISMISSAL AND NONSUIT-DISMISSAL OF ACTIONS-FAILURE TO NOTICE CASE FOR TRIAL.

Since the adoption of Circuit Court Rule 13, authorizing either party to notice cases for trial, the reason for dismissing actions for want of prosecution upon failure to serve notice of trial, no longer exists.

2. SAME EXCUSES FOR DELAY

TICES OF THE PEACE-APPEAL.

SUMMARY PROCEEDINGS - Jus

Following judgment of ouster in summary proceedings before a justice, defendants appealed, and the complainant filed a bill in chancery to declare the lease under which defendants held possession forfeited. No notice of trial was served in the appeal case during several terms of court, and until after a decree was entered in the chancery case. Also, complainant did not enter her appearance in the circuit court until about nine months had elapsed. Ten days after she entered her appearance, defendant-appellants noticed the cause for trial. Held, that whatever delay occurred was chargeable to complainant's proceedings in chancery, and, on the merits, a motion to dismiss the appeal in the summary proceedings for want of prosecution was erroneously granted. Error to Wayne; Donovan, J. Submitted October 15, 1912. (Docket No. 88.) Decided March 20, 1913.

Summary proceedings by Ida B. Heintzen against Frank Gault and another for the recovery of possession of real property. From a judgment for complainant, defendants appealed. The circuit court dismissed the appeal for want of prosecution. Defendants bring error. Reversed.

George W. Coomer, for appellants.

Frank W. Atkinson and Ari E. Woodruff, for appellee.

MCALVAY, J. Complainant filed her complaint before a justice of the peace of the township of Ecorse, Wayne

county, under the statute authorizing summary proceedings for such purpose to obtain possession of certain premises, consisting of a farm of 100 acres, held by defendants under a written lease from complainant, averring that they were unlawfully holding the premises, contrary to the terms of said lease, and that she was entitled to possession. Upon this petition the usual summons was issued, and the case was heard before the justice's court June 7, 1910, and a judgment rendered in favor of complainant against the defendants. On June 11th following, defendants appealed from such judgment, as provided by statute, and furnished the statutory bond in the penal sum of $1,000, which said appeal, together with said bond, was duly returned by said justice and filed in said circuit court June 25, 1910. An appearance for complainant was not filed and entered in the circuit court until March 21, 1911, and on the 31st day of the same month the cause was listed for trial by defendants. Between that date and April 15th following (the exact date does not appear), a motion in the nature of a petition was filed by complainant, which was not sworn to, to dismiss the appeal for want of prosecution. No affidavits were filed in support of this motion. The motion was resisted by defendants upon the affidavit of one of their attorneys in the case, showing, among other things, that on June 10, 1910, after judgment in justice's court and before the appeal was returned to the circuit court, complainant filed her bill of complaint in the circuit court for the county of Wayne, in chancery, against defendants, wherein she prayed as part of the relief sought that the court declare defendants to have forfeited the lease of the premises in question, which is involved in the instant case; that defendants demurred to such bill of complaint, and the demurrer was sustained in so far as the prayer for cancellation of the lease was concerned, and the bill allowed to stand as an injunction bill. Thereupon defendants' attorneys listed the instant case for trial.

On the hearing of such motion, over the objection of

defendants, complainant was allowed to testify at length relative to the land, what property defendants had there, that they had vacated the farm, and that she, with a small boy 10 years old, looked after and cared for the premises, to which the court allowed no cross-examination. Her testimony contradicted the statement in her petition that defendants continued in possession of the premises. The result of such hearing was an order and judgment dismissing the appeal for want of prosecution, and the court held that they had abandoned the land and violated the terms of the lease, and remanded the case to the justice's court for further proceedings. From this judgment the defendants have, by writ of error, removed the case to this court.

Although several errors are assigned, the appellants confine themselves to the proposition that the court erred in dismissing the appeal, and that the final order and judgment of the court is not in accordance with the law.

The defendants had perfected their appeal from justice's court, and filed the bond required by statute in the penal sum of $1,000. No claim is made that in making such appeal there were any defects or irregularities affecting the jurisdiction of the circuit court. The only ground for the motion of which this court will take cognizance is the claimed failure to prosecute said appeal. In the petition of complainant and her testimony, which the court admitted, but upon which no cross-examination was allowed, and also in the opinion and order and judgment much matter appears which has been presented, but, as it is entirely foreign to the question involved, it requires no consideration.

The question has been passed upon by this court, and it has been held that since the adoption of Circuit Court Rule 13, authorizing both parties to notice cases for trial, the reason for dismissing a case for want of notice no longer exists. Abe Stein Co. v. Wood, 151 Mich. 657 (115 N. W. 1046). See, also, Detroit, etc., R. Co. v. Eaton Circuit Judge, 128 Mich. 495 (87 N. W. 641).