if the defendant cannot introduce specific facts without pleading them in justification, for the same reason the plaintiff should not be permitted to prove them. Otherwise, there would be one rule of evidence for the plaintiff, and another for the defendant. Briefly stated, the rule is that the allegation of general damages will admit only general proof.

3. Plaintiff was one of the trustees of the estate of Andrew McDuff. He was not living in Detroit at the time he was made trustee. One McFedries, a son-in-law of Andrew McDuff, was asked the following question:

"You did send for Gilbert McDuff to come here and take charge of this estate?"

This was objected to as irrelevant and incompetent; the request, if any, having been made by letter. Plaintiff's counsel then offered some letters written by the witness to plaintiff, which the counsel himself said he did not think were admissible. After considerable discussion by counsel, the court asked the witness the following questions:

"Q. You did send for Gilbert McDuff to come here and take charge of this estate?

"A. did, most emphatically.

"Q. Did you consult with his father and mother before you sent for him?

"A. Yes, sir.

"Q. How did you communicate with him?

"A. In writing the letter."

Thereupon counsel for defendant moved to strike out the answers and questions, to which motion the court replied:

"I am going to let them stand, if they are the only answers in the case."

The testimony was both irrelevant and incompetent. So far as the management of the estate by plaintiff was concerned, it was of no consequence how he came to

take charge of the estate; but, if material, the letters were the only competent evidence of the fact.

4. Another witness for plaintiff was asked the following question:

"That part of the article published in the Detroit Evening Journal of February 1, 1888, stating who are said to be starving in a Jones-street attic,' referring to the mother and father of the plaintiff, is it true or untrue?"

This question was for the determination of the jury from the facts placed by the evidence before them. It called for the opinion of the witness from the facts within her knowledge. These facts it was competent to testify to. The conclusion was for the jury, and not for her. The answer called for her opinion, which was clearly improper.

5. A copy of the Omaha Herald was introduced, containing the following:

"Andrew McDuff, of Detroit, who had amassed a fortune, had not been seen for about ten years, till recently found by an agent of the Humane Society. He was confined in a cold and filthy room, without food or sufficient covering. Probably, the relatives who have been living off Mr. McDuff's money during these ten years thought that such treatment would kill the old man. Now that the unfortunate has been rescued, there only remains the pleasant duty of sending his unnatural son to the penitentiary, which fairly yearns to receive him."

This was objected to, and was finally stricken out by the court. In this connection a letter from one P. McDuff, a brother of the plaintiff, was introduced, under objection, which contained the following:

"Some person unknown to me sent me Omaha Herald for February 4, with a piece on the fourth page marked, which if you think proper to look it up, you will probably excuse my course.

Plaintiff showed no connection between the publication

in the Journal and the article in the Omaha Herald, which appeared under the editorial column of that paper, and not as a piece of news obtained from another publication. That article and the letter were clearly inadmissible. The jury very likely presumed that the article in the Omaha Herald was based upon the article in the Journal, but there was no evidence of the fact. Error in admitting such testimony is not cured by striking it out. There may be cases where courts may well say that the jury could not be prejudiced by the admission of incompetent testimony when it is stricken out. In such case it would be error without prejudice, and judgment would not be reversed for that reason. But we cannot apply such ruling to the present case, where the inevitable result of the evidence would be so injurious to defendant.

6. A witness on behalf of the plaintiff was asked:

"Now, I would like to know whether any of your customers that you remember stated anything with reference to their being moved to tears by this article.

"A. A lady came into the store, and said that her mother read it, and shed tears over it, and felt badly about it, and gave as a reason that she had been a schoolmate of his."

This testimony was clearly too incompetent, on the ground of hearsay, to merit discussion.

7. The next assignment of error relates to the conduct of the circuit judge upon the trial. To an objection to the admission of testimony made by defendant's counsel, the court said:

"I do not want to compliment Mr. Pound, but I am well aware of the fact that Mr. Pound knows how to try a lawsuit."

Mr. Brearley, the manager of the defendant, at the close of his cross-examination was dismissed by plaintiff's counsel with the remark:

"I think that is all, Mr. Brearley; you can go on and state that I have not cut my eye-teeth again, if you wish."

Defendant's counsel excepted to this remark, to which the court said:

"I do not think the papers make fair remarks. I noticed the paper called Mr. Pound General.'

Plaintiff's mother, who was 75 years old, was asked if plaintiff had said anthing to her about her moving out of the house, and answered:

"I understood that he wanted me to go to the Old Ladies' Home.

"The Court. "Witness.

Answer the question.

I am trying to.

"Court. You are not. I do not hesitate to say it to you, madam.”

A colored man by the name of Johnson was a witness for the defendant. He had made a statement which was in direct conflict with the testimony on the part of plaintiff. Plaintiff's counsel thereupon asked the court to commit the witness for perjury, and stated to the court, in the presence of the jury:

"The witness deliberately lied when he said Gilbert McDuff locked his father up in that house."

Defendant's counsel excepted to this language, and the court thereupon said:

"I tell you, I have a decided opinion of this man's testimony, and I intend in my charge to the jury to call their attention to his testimony. The manner in which this man swore yesterday is something I shall never live long enough to forget. And put this in the record, if it ever gets out of the court-room, and keep it there: A man who will do as he did, and point out a man under the solemnity of oath, and swear that a certain man paid $1.10, I say, sir, I have my opinion about it, and a decided opinion of it."

Defendant's counsel objected to this statement, and

stated that the court had no business to make such a remark from the bench; to which the court replied:

"I have. Take your exception. I have, and I will say more if you want it."

And in charging the jury the judge said of this witness:

"I think it my duty to charge you that in regard to his evidence I have a decided opinion."

With the propriety of such conduct and language we have nothing to do. Our only province is to determine whether they amount to a legal error; and however unpleasant the duty may be, in such cases, we must not shrink from performing it. Whatever language may be

It is their

Whenever

used by counsel in the heat of trial, it is the legal duty of the judge to preside and decide with impartiality, and to keep counsel within proper bounds. Appellate courts must presume that one occupying so important a position as that of circuit judge can influence a jury. duty to follow his instructions as to the law. he expresses an opinion on any disputed fact, or of the character of a witness, or compliments one attorney at the expense of the other, or uses language which tends to bring an attorney into contempt before the jury, or uses any language which tends to prejudice them, he commits an error of law for which the verdict and judgment must be promptly set aside. Appellate courts cannot correct mistakes of fact. Trial courts, therefore, cannot be too circumspect and careful to see that questions of fact are submitted to the unbiased judgment of the jury, which, under our jurisprudence, are for their sole determination. To sanction such conduct and language as the above by the circuit judge would tend to render trials a farce, and result in a denial of justice. Language less open to criticism has been held error by this Court. Wheeler v. Wallace, 53 Mich. 355; Cronkhite v. Dickerson, 51 Id. 177; People v. Hare, 57 Id. 505.