wise engaged. A memorandum of the objections appears to have been made by appellants' counsel, and the court's attention called to the objectionable matter later, at the time of the charge, and the court instructed the jury upon the subject. We have ruled that the circuit judge should have his attention called to objections, and he should be given an opportunity to pass upon objections to improper arguments when made; but what should be done when the circuit judge is not present to make rulings? This presents a new question which we do not find it necessary here to pass upon, for the reason that the case must be reversed upon another ground. But we do think we should say that in our opinion it is the duty of the trial judge to be present and in attendance and to hear the arguments of counsel to the jury, and be in a position to rule upon objections when they are made to any part of the argument. This question will not probably arise upon a new trial.

(d), (e), and (f) may be considered together. We have examined the charge in this case with great care, and in the main it seems to have presented the case very fully and fairly to the jury.

By the thirty-sixth assignment of error complaint is made because of the refusal of the court to give defendants' twenty-fifth written request, which is as follows:

"I charge you, as matter of law, that neither discontinuance of the Beach Case or the discharge of plaintiff on his examination on each of these complaints does not show want of probable cause, or that plaintiff was innocent of the offense with which he was charged."

One of the assignments of error is based on the charge of the court as given, as follows:

"Now, while it devolves upon the plaintiff to establish want of probable cause, I instruct you that, when the records were introduced here showing that he

had been discharged on each of the complaints in question, that prima facie established a want of probable cause on the part of the man prosecuting."

This was one of the errors urged upon the court in the motion for a new trial. Referring to the same, the learned circuit judge, in his reasons for denying the motion, said:

"This matter was brought up on the trial of the case on the motion to direct a verdict, and at that time plaintiff produced authorities from the second edition of Judge Cooley's work on Torts sustaining his position, and also some other cases which indicated that that was the rule of law. The court expressed his surprise that such could be the law and stated that it was contrary to his understanding, but, as counsel for the defendant did not produce authority to the contrary, when the court came to instruct the jury he assumed that this was the law and gave the instructions at the request of the plaintiff. A subsequent investigation satisfied the court that this was not the law in this State, and that this instruction was an error; but in view of the very full instruction given to the jury in the charge, in reference to what constituted probable cause, the court is satisfied that it was error without prejudice to the defendants."

The sixty-ninth assignment of error is based upon the refusal of the court to grant a new trial on this ground.

In Davis v. McMillan, 142 Mich. 391 (105 N. W. 862, 3 L. R. A. [N. S.] 928, 113 Am. St. Rep. 585, 7 Am. & Eng. Ann. Cas. 854), this court held that the discharge of one accused of crime has not, of itself, any tendency to show want of probable cause for instituting the prosecution. The opinion in that case was written by the late Justice HOOKER. He said among other things:

"It has been frequently held that an acquittal does not necessarily show want of probable cause. It is doubtful if the converse has ever been held; for, if it were, it would seldom be safe to institute criminal

proceedings, as conviction must always be an uncertainty under the rule of reasonable doubt, and the proceeding, being for the avowed purpose of ascertaining whether a person is guilty or not, necessarily implies a degree of uncertainty in the institution of the proceedings. In 19 Am. & Eng. Enc. Law (2d Ed.), p. 665, the author of the subject states that some cases hold that acquittal is not alone prima facie or per se sufficient evidence of want of probable cause, and expresses the opinion that the better doctrine is that it is (alone) no evidence whatever of the want of probable cause. We think it

can safely be said that the weight of authority denies the rule that discharge by a magistrate upon request of the prosecuting attorney is prima facie evidence of want of probable cause. * * * We feel warranted in saying that the discharge of the defendant in this case has not in itself any tendency to show a want of probable cause."

We think that the doctrine of this case should be adhered to.

In the instant case it will be borne in mind that on the Beach complaint the prosecution was dismissed upon the request of the prosecuting attorney. Notwithstanding the very full instruction given to the jury in the charge in reference to what constituted probable cause, we are constrained to hold that the error of the trial judge in the instance pointed out was prejudicial error and was not cured by the remainder of the charge, and that it is our duty to reverse the case for that reason.

We do not think the court erred in submitting the case to the jury as to all of the defendants. We think it was a fair question for the jury whether the witness Schmidtill was acting solely for the insurance company or whether he was acting also as supervising agent of the defendant company. Nor can we say that the action of Mr. Tatro, the general agent, in sending the witness from Chicago and furnishing

176 MICH.-21.

the documents and information from the general office was wholly in the interest of the insurance company. He had plenary power in the case. That he had such power is not denied. Zart v. Sewing Machine Co., 162 Mich. 387 (127 N. W. 272).

We are not prepared to say that the court erred upon that portion of its charge relating to the measure of damages or that there was any reversible error other than has been pointed out.

For the error indicated, the judgment of the circuit court is reversed, and a new trial granted.

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

RICE v. KALAMAZOO CIRCUIT JUDGE.

PROCESS-AFFIDAVITS-CAPIAS AD RESPONDENDUM-KNOWLEDGE OF AFFIANT-MOTION TO QUASH.

On motion to quash a writ of capias ad respondendum, issued on plaintiffs' affidavit that they were induced to take defendant's note for a balance due, in an exchange of property, by false representations of defendant, who stated that he owned several houses and lots, and that a surety on the note owned certain property; that affiants had ascertained that defendant did not own the houses as represented, and the surety did not possess the property stated, the writ should have been quashed, for the reason that affiants could not have personal knowledge as to the ownership of the property, and the affidavit was insufficient.

Mandamus by Eugene W. Rice against Frank E.

Knappen, Kalamazoo circuit judge, to compel respondent to quash a writ of capias ad respondendum. Submitted May 6, 1913. (Calendar No. 25,572.)

Writ granted July 9, 1913.

Titus & Titus, for relator.

Fred A. Mills (Frank F. Ford, of counsel), for respondent.

OSTRANDER, J. A motion to quash a writ of capias ad respondendum, upon which relator had been arrested, was overruled, and relator asks for the writ of mandamus to compel the granting of the motion. The only question presented is whether the affidavit attached to the writ warranted the indorsement of an order to hold to bail.

The affidavit advises the court that in a trade of property, real and personal, owned by the plaintiffs, for land owned by relator, a difference of $300 was agreed to be paid by relator. For this difference relator induced plaintiffs to take his note, with a signer. The original bargain is not repudiated. The note has not been paid, and it is the claim of the plaintiffs that they were induced to accept the note and to complete the trade, which had been arranged by fraudulent representations of relator respecting his own financial responsibility and that of the person who signed the note with him. It is claimed, also, that the arrangement was that this note was to be signed by relator's wife, and was not, and the fact that she had not signed it was discovered after the note had been accepted and the papers exchanged. In the affidavit for the writ it is stated that deponents finally agreed to accept a note for $300 if defendant (relator) "would have his wife sign it and also get a good, responsible signer besides." The representations of financial responsibility which it is alleged were relied upon are,