findings, there is usually no practical difficulty. In this case the charge was careful and discriminating, and we can find nothing in it which goes beyond what has been heretofore approved. The damages are not extravagant, and the rulings were proper.

The judgment must be affirmed.

(The other justices concurred.)

CLARK v. WILES and others.

Filed June 25, 1884.

TRESPASS-DIGGING DITCH THROUGH LAND OF ANOTHER.

One who, in digging a drain through the land of another, throws the dirt over the limits of the land appropriated, and on the other's land, thereby commits a trespass.

Error to Genesee.

William H. Sweet, for plaintiff. Long & Gold, for defendants.

COOLEY, C. J. This suit was begun in justice's court, and removed to the circuit court on plea of title. The action was trespass to lands, and the question chiefly contested was the validity of certain proceedings in laying out a certain drain through the plaintiff's lands. But the same proceedings were in issue in the case of Clark v. Teller, 50 Mich. 618, S. C. 16 N. W. REP. 167, which was a suit in equity to test them. The proceedings were sustained in that suit, and the decision must be accepted as final. It was the business of complainant to bring forward all his objections then; if he reserved any for another suit they cannot now be heard. There is, however, a

further question presented by this record. The plaintiff claims that in various ways the defendants, who were the parties who cut the drain, caused him special damages; and the judge submitted the case to the jury under instructions which would have required them to return a verdict for the plaintiff for any such special damages, if they found there were any. The jury having returned a verdict for the defendants, must be understood to have determined that no such damages were suffered. But the plaintiff claimed further that the defendants, in cutting the ditch, threw the earth over the limits of the land appropriated for the purpose upon the plaintiff's land; and one of the questions made on the trial was whether, if the fact was so, the plaintiff was not entitled to recover in any event, at least, nominal damages. The trial judge thought not, unless it was done in an improper, reckless, or negligent manner; and he so instructed the jury. In this he erred. It was the duty of the defendants to keep within the limits of the land which had been given, purchased, or condemned for the purposes of the drain; and the throwing of earth upon the plaintiff's land outside those limits was a trespass. For this error the judgment must be reversed, and a new trial ordered. But as an inspection of this record in connection with the verdict leads us to the conclusion that much of this litigation has been unnecessary and needlessly expensive, and that it is doubtful if any substantial damages have been sustained, we think it proper, in awarding a new trial, to give to neither party costs of this court. The costs in the court below will, of course, abide the result.

(The other justices concurred.)

HIGHSTONE v. BURDETTE and others.

Filed June 25, 1884.

1. EJECTMENT-OUSTER-QUESTION FOR THE JURY.

Ouster is a question of fact, which it is the province of the jury to determine; and the facts and circumstances which go to establish the ouster, ought, under proper instructions from the court, to be submitted to the jury.

2. SAME-BURDEN OF PROOF-SHIFTING Of Burden.

In ouster the burden of proof is on the person alleging it; but when both parties rely upon ouster, it is incumbent on the plaintiff to prove it within the statute of limitations. If he introduce evidence tending to prove it within that period, then the burden is shifted to the defendant to prove an actual ouster which occurred anterior to that period.

Error to Mackinac.

C. R. Brown and J. J. Brown, for plaintiff. Humphrey & Perkins, for defendants.

CHAMPLIN, J. Under an act of congress entitled "An act to confirm certain claims to lands in the territory of Michigan," the heirs of Francis Claremont were confirmed in their claim "to the tract of land containing seventyeight acres and ninety one-hundredths of an acre, bounded northwardly by lot numbered eleven, eastwardly by Lake Huron, southwardly by lot numbered nine, and westwardly by the public lands; and being designated on the connected map of private claims at Michilimackinac as lot numbered ten, at Point St. Ignace.' A patent was issued by the United States to the heirs of Francis Claremont, and to their heirs and assigns, forever, on the twelfth day of October, 1830. The heirs of Francis Claremont consisted of four sons, named John, Francis, Louis, and Alexander. The plaintiff claims an undivided half of the above land in fee, and has brought this suit in ejectment to establish his title and obtain possession. His claim of title is as follows: (1) The patent above mentioned; (2) a warranty deed from Louis Claremont and Mary Claremont, of Hamburgh, county of Fremont and state of Iowa, to Seigfried Highstone, of "all their right title and interest" to the land in question, dated October 7, 1874; (3) a deed of the land in question from Francis Claremont, Sr., of Richfield, Summit county, Ohio, to Seigfried Highstone, dated September 2, 1874. The defendants claim title through the same patent, and a deed from John Claremont and Rebecca Claremont to Louis Martin, dated July 8, 1854. This is a full covenant warranty deed of all the land under which defendant entered into possession in 1866. May 1, 1867, Louis Martin conveyed the whole of the premises in question by warranty deed to his wife, Angelique Martin. April 6, 1878, Angelique Martin, by warranty deed, conveyed the whole of the premises to Mary Ann Burdette. April 21, 1881, Louis and Angelique Martin conveyed all the premises to Mary Ann Burdette. On the trial of the case in the court below it was conceded by the plaintiff "that the defendants, having entered upon said land in 1866, have been in the sole and peaceable possession thereof up to the present time," but denied that the possession was acquiesced in by the plaintiff. The rulings complained of consist in admitting and excluding testimony against plaintiffs objections, and in taking the case from the jury and directing a verdict for defendant. The defendant claimed title to the whole premises by adverse possession, and entry under color of title derived from John Claremont in 1854; that at the time this deed was executed the land was wild and uncultivated, and so remained when he took possession in 1866; and that such possession taken under a warranty deed was an ouster of his co-tenants, and the statute of limitations commenced to run from that time. There was no evidence in the case that the co-tenants through whom plaintiffs claim had any notice or knowledge of Martin's taking possession, or of any claim by him adverse to their title. There was testimony tending to prove that Martin

only bargained for and purchased from John Claremont his undivided onefourth interest in the land.

Under the proofs in this case the question ought to have been submitted to the jury as to whether Louis Martin entered into possession of the lands in question, claiming title to the whole, and with intention of ousting his cotenants. In order to maintain ejectment the plaintiff was required to prove, in addition to all other evidence which he was bound to give, that the defendants actually ousted him, or did some other act amounting to a total denial of his right as such co-tenant. How. St. § 7812. The plaintiff gave evidence tending to prove that he demanded of Mary Ann Burdette to be let into possession with her in 1878, and that she refused, and claimed that she owned the whole land, and was in possession, and should keep it; and she refused to divide the property with him. Ouster is a question of fact, which it is the province of the jury to determine, and the facts and circumstances which went to establish the ouster, ought, under proper instructions from the court, to have been submitted to the jury. Taylor v. Hill, 10 Leigh, (Va.) 457; Cummings v. Wyman, 10 Mass. 465; Purcell v. Wilson, 4 Grat. (Va.) 16; Harmon v. James, 7 Smedes & M. 111; Blackmore v. Gregg, 2 Watts & S. 182; Carpenter v. Mendenhall, 28 Cal. 484; Clark v. Crego, 47 Barb. (N. Y.) 599. And the burden of proof rests upon the party alleging it. Newell v. Woodruff, 30 Conn. 492; Van Bibber v. Ferdinand, 17 Md. 436.

In this case both parties relied upon ouster, and it was incumbent upon the plaintiff to prove it within the statute of limitations, and if he introduced evidence tending to prove it within that period, then the burden was shifted upon the defendants to prove an actual ouster which occurred anterior to that period. But the circuit judge did not permit any of the testimony to go to the jury, and directed them to render a verdict for the defendants. This was erroneous. The judgment is reversed and new trial granted. (The other justices concurred.)

GARDNER v. BELLER.

Filed June 25, 1884.

ACTION BY PHYSICIAN-SERVICES RENDERED-EVIDENCE-INSTRUCTIONS-VERDICT.

Error to Wayne.

F. A. Baker, for plaintiff. Geo. H. Prentis, for defendant and appellant. CAMPBELL, J. Plaintiff sued defendant for a balance due for professional services. He described the services, and gave his own testimony as to their value. He also swore other witnesses, who gave evidence on what we think was fairly within the same theory, and who substantially agreed with him. The defendant gave testimony as to the services rendered, but put in no proof of value, but did introduce a bill rendered, on which part payment had been made. The court below called the attention of the jury to the fact that no evidence of value had been given by defendant, and instructed the jury, in substance, that they might use the testimony given as a ground for basing a verdict upon, if they were satisfied with it, and they so found. We can find no reasonable ground for objection to any of the rulings below, which seem to us entirely proper, and the only ones which could have been given. There is nothing worthy of discussion. The judgment must be affirmed. (The other justices concurred.)

v.20, no.1-5

PEOPLE. CARROLL.

Filed June 25, 1884.

CRIMINAL LAW-BURGLARY-EVIDENCE-POSSESSION OF PROPERTY STOLEN. Possession of money stolen is evidence, in connection with other evidence, to prove the defendant guilty of burglary.

Error to supreme court.

J. J. Van Riper, for plaintiff. Emil A. Dapper, for defendant and appellant.

CHAMPLIN, J. The respondent was convicted of burglary and larceny in the superior court at Grand Rapids. The record contains a bill of exceptions, but does not purport to give all the testimony. On the trial, the counsel for the people gave testimony tending to show that the money stolen was found upon the person of the respondent. This was objected to by the respondent's counsel, on the ground that possession of stolen property was not evidence of burglary. The testimony was admitted in the case, and exception was taken. It was proper testimony to be given, with other evidence in the case, to prove the respondent guilty of the crime charged, and no error was committed in receiving it. It is only necessary to say, further, that the other objections and exceptions of counsel for respondent were not well taken, and need not be further considered. The judgment must be affirmed. (The other justices concurred.)

HOUGHTON v. Ross.

Filed June 25, 1884.

AGENCY-AGENT TRANSCENDING HIS AUTHORITY.

When one authorized to bring up two of the plaintiff's horses from Canada, instead of so doing sells them and buys other two, there is no transfer of title without some agreement of sale carried out by payment of price or earnest, or by delivery.

Error to Marquette.

E. J. Mapes, for plaintiff. F. O. Clark, for defendant.

CAMPBELL, J. In this case Houghton sued Ross for the use of two teams which Ross bought of Gordon & Co., but which plaintiff claimed as his own. One was a team of Black ponies which plaintiff insisted were given him for a pair of gray mares disposed of in Canada for a much less sum than the ponies were worth. The other team he claimed to have bought from a vessel. As it was intimated on the hearing that this second team had been put out of the case by a reduction of the verdict, we need not look beyond so much of the record as refers to the others. In this, as in the replevin case, plaintiff's testimony about the bargain is all that is most important on his side, although there was some other testimony. It appears here, as there, that while plaintiff was employed by Gordon & Co. in their lumber business in Schoolcraft county, under Mr. Weller, as their general agent, he desired Weller, who was going down to Canada after teams, to bring up a team of gray mares which plaintiff had owned for several years. Weller, instead of bringing them up, sold them, as not worth bringing at the rates of freight and duties which would be payable. He did this without any previous authority. He bought 13 or 14 teams and had them taken up. About a month after his return plaintiff saw him, and he told him of the sale. Plaintiff says that he told him he had a nice young team that would satisfy him, but did not say he had traded the grays for the blacks, but afterwards pointed out the blacks as plaintiff's team. According to plaintiff's testimony he had more or less teams under his orders, but these horses, although brought up in October, did

not come to his camp until the next March, and did not come into his personal possession for some time thereafter. The teams having been sold by Gordon & Co. to Ross, and used in Ross' business, plaintiff sues for their use. There is considerable testimony which is in conflict. Among other things there was a receipt in full of all demands given to Ross by plaintiff, covering the use of a team, not including those now in dispute, but not covering these. We find no testimony which can be relied on as distinctly showing a sale and delivery of these horses to plaintiff. As he is the only person who swears to any such bargain at all, and who swears to what was done, it cannot be supposed that he has left out any important element. He shows that there was no authority to sell the grays, and that he was not given to understand the grays were exchanged for the blacks. This being so, there could have been no transfer of title without some agreement of sale, carried out by payment of price or earnest, or by delivery. It is very difficult to make out any such transaction. When plaintiff receipted to Ross, it was for the purpose of a complete settlement, and the receipt so states. It was made at the end of his term of service. It covered the whole time of his employment with Ross. It covered a charge for one team, and it gave credit for all moneys received. This being so, the charge was not correct in regard to its effect.

It is undoubtedly true that a receipt may be explained and mistakes corrected under proper circumstances. But the court put the case to the jury on the theory that if it was not understood by the parties to be a settlement in full, if no reference was made to the use of these horses during this time, and the settlement was not made with reference to that, then, of course, it would not cover pay for the horses, but would only cover the account it purports to cover. This statement and the receipt attached to it cannot bear any construction except that of an account stated. It is in such a shape as to exclude the idea that it does not mean to cover everything. It is entitled to all the respect due to an account stated, and, while open to any explanation which can be properly allowed for errors or omissions, it certainly implies, on its face, not merely that it was intended to cover what is detailed, but also that there is nothing outstanding which is not detailed. Perhaps this may have been what the court understood, but the language used leads to a different impression, and the difference is quite material, and, as the testimony stood, was very well calculated to lead to a wrong conclusion. The judgment must be reversed, and a new trial granted. (The other justices concurred.)

Ross v. HOUGHTON.

Filed June 25, 1884.

SALES-FRAUD-DECLARATIONS AFTER THE CONVEYANCE.

A party selling to another, the sale cannot be affected by subsequent accountings; and if he did not sell it to the other, then the first party's title cannot be affected by his sayings and doings, or of those of the person through whom he acted.

Error to Marquette.

F. 0. Clark, for plaintiff and appellant. E. J. Mapes, for defendant.

CAMPBELL, J. This case was presented with another involving title to the same property, but in a way so far different as to require a separate discussion. This action is replevin for a pair of black French ponies claimed by defendant as his. They were sold plaintiff by the firm of Gordon & Co., who were his predecessors and assignors in the lumbering business in Schoolcraft county. They were bought for Gordon & Co. by Mr. Weller, who was their general agent, and brought up by him from Canada, in the summer of 1880,