consenting or protesting, and whether she believed the confession or disbelieved it; and the statute, which allows to the injured wife and husband the exclusive privilege of prosecuting the guilty parties, (Comp. L. § 7693,) contemplates that the injured wife will proceed irrespective of the husband's consent, and in spite of him. The evidence should, therefore, not have been received. If it influenced the jury in any way, it must have been injurious to defendant.

3. When the jury retired to consider their verdict, an officer accompanied them and remained in the room during their deliberations. The attention of the court was called to the fact on a motion for a new trial, but on its being made to appear that the officer did not converse with the jury in their room, the court denied the motion. This was on the assumption that under the circumstances the defendant could not have been injured by the officer's presence in the room.

It is not claimed that the officer can with propriety be allowed to be within hearing when the jury are deliberating. Whether he does or does not converse with them, his presence to some extent must operate as a restraint upon their proper freedom of action and expression. When the jury retire from the presence of the court, it is in order that they may have opportunity for private and confidential discussion, and the necessity for this is assumed in every case, and the jury sent out as of course where they do not notify the court that it is not needful. The presence of a single other person in the room is an intrusion upon this privacy and confidence, and tends to defeat the purpose for which they are sent out. And if one may be present, why not several? Why may not the officer bring in his friends to listen to what must often be interesting discussions, and then defend his conduct on proof that they did nothing but listen?

But the circumstances of particular cases may make it specially mischievous. In their private deliberations the jury are likely to have occasion to comment with freedom upon the conduct and motives of parties and witnesses, and to express views and beliefs that they could not express publicly without making bitter enemies. Now the law provides no process for ascertaining whether the officer is indifferent and without prejudice or favor as between the parties; and as it is admitted he has no business in the room, it may turn out that he goes there because of his bias, and in order that he may report to a friendly party what may have been said to his prejudice, or that he may protect him against unfavorable comment v3-59 (no. viii)

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through the unwillingness of jurors to criticise freely the conduct and motives of one person in the presence of another who is his known friend. Or the officer may be present with a similar purpose to protect a witness whose testimony was likely to be criticised and condemned by some of the jurors.

Suppose some member of the officer's family had given important evidence in the case; what reason can there be for expecting that this evidence would be freely canvassed and carefully considered in his presence? But the case may touch him still more nearly. In criminal cases, especially, officers frequently become important witnesses, and no one can have had much to do with such trials without feeling that unusual care and caution is necessary, in the examination and sifting of their evidence, in order to guard against a natural tendency to allow the facts to be colored by their prepossessions, especially in the case of those they have themselves arrested or accused. If, under such circumstances, the officer may be present when his own evidence is to receive its final sifting, the accused may well suspect he is tried and judged unfairly. Nor will it do to leave the case for subsequent investigation, in order to ascertain whether the suspicion is well founded. The time of the court cannot be taken up with such inquiries; if it could be the result would not always remove the suspicion. The only proper and just course is to insist upon a rigorous observance of the proper practice, in order to prevent all occasion for injurious suspicions.

The public are concerned in this as well as the accused, and the public is also concerned in not having the deliberations of the jury reported for news-gatherers and scandalmongers outside. Jurors are generally expected to keep their own counsel, because they have an interest in doing so; but the officer is under no corresponding restraint, and it is through him that what takes place in the jury room is most likely to leak out. The courts should see to it that, as far as possible, an officer disposed to do this species of mischief is deprived of the opportunity.

It was held in Cole v. Swan, 4 Green, (Iowa,) 32, that officers having a jury in charge, while they are deliberating on their verdict, should never speak to them except to ask them whether they have agreed, and that if an officer violated this rule, any verdict afterwards returned, whether the conversation did or did not have any influence in producing the verdict, should be set aside the moment the fact comes to the knowledge of the court. We have said enough already to

show that it is not conversation alone that is mischievous; the mere presence of the officer within the hearing of the jury is often quite as much so. In one case what he would say might influence the verdict; in another, what his presence might restrain jurors from saying might accomplish the same result.

It must be certified to the court below that the verdict should be set aside and a new trial granted.

(The other justices concurrred.)

PAMELA M. FRASER US. ESTATE OF ALEXANDER D. FRASER.

Filed November 29, 1879.

Facts in this case considered, and held that it would be presumed that payments on behalf of complainant, made prior to the making of the contract set out in the opinion, were intended as a gratuity, and not to be included in determining the amount due under such contract. While in an action for money had and received, any equity showing that plaintiff is not entitled to the money is a defence, the equity must be one known to the law and that can be recognized on the principles on which courts of equity are administered.-[ED.

Error to Wayne.

Ashley Pond, for plaintiff in error.

William Jennison, for defendant in error.

COOLEY J. The claimant presented a demand against the estate of Alexander D. Fraser, who was her father-in-law, the basis of which was the following agreement in writing between them:

"Memorandum of agreement made and entered into, by and between Alexander D. Fraser, of the city of Detroit, party of the first part, and Pamela M. Fraser of the same place, party of the second part, on the seventh day of December, A. D. 1872.

"WHEREAS, The late Alexander J. Fraser heretofore in his life-time duly made, executed and delivered to said party of the first part a certain deed of conveyance of lot 'B,' on Fraser's plat of a part of the Chene farm, lying on the south side of Jefferson avenue, in said city of Detroit, being the same premises upon which he then lived, and which are described as follows:

"On the north by Jefferson avenue, and on the south by Franklin street, and on the east by the boundary line between said lot and that of Henry N. Walker, and on the west

by the boundary line of said lot and the property of said party of the first part, which lot is one hundred and forty (140) feet front; that said deed was duly acknowledged and recorded in the office of the register of deeds for Wayne county, and to which reference is here made for greater certainty.

"And, whereas, further, the party of the first part has, since the date of said deed, paid, laid out and expended various sums of money for taxes assessed on said premises for city, state and county purposes, special assessments for pavements and for drains, and also for repairs upon said premises up to the present time, as will more fully appear by the receipts, documents and vouchers therefor, the greater part of the money so applied being money belonging to Mary Davidson, and the residue from the money of the party of the first part. "And, whereas, said party of the first part is desirious and willing that the said party of the second part shall now be entitled to and receive whatever sum or sums of money that shall be derived from the sale of said premises on the following terms:

"Therefore, it is hereby mutually agreed, by and between the said parties respectively, that the said premises shall be sold in such manner as the said Pamela shall desire; that out of the first proceeds of the sale the mortgages affecting said premises shall be paid and discharged; that then whatever sum or sums of money may have been paid or laid out by the said Alexander D. for taxes, repairs and assessments, as aforesaid, and insurance on said premises, with such as he may hereafter pay before such sale, with interest thereon at the rate of seven (7) per cent. per annum, from the date of such advances respectively, shall be paid and refunded to him; that if any other liens legally affect said premises the same shall also be discharged in like manner; that after such deductions are made the whole of the residue of the money to be derived from the sale of said premises shall be the absolute property of said Pamela, her heirs and assigns, for her own use and purposes; that upon such sale being made, (on these provisions being carried out,) both the parties hereto will duly make and execute the requisite deeds for the premises; and in order to afford time for naking such sale it is the desire of the said Pamela that the said Alexander D. shall pay the state and county taxes that are now due and payable upon the same, and also pay the instalment of interest on said mortgages which shall be due upon the first day of January next.

"In witness whereof, the parties to these presents have hereunto respectively set their hands and seals on the day and year aforesaid.

"Said agreement was duly acknowledged December 7, 1872."

The agreement was not disputed, but it was claimed on the part of the estate that it was fully satisfied by Mr. Fraser in his life-time. It appeared in evidence that A. J. Fraser, the complainant's husband, on March 1, 1867, executed two mortgages on the premises described in the agreement, to Sullivan Moulton, to secure the payment of $7,500 in five years from date, with 10 per centum annual interest, and that Mr. A. D. Fraser had paid interest on these mortgages, from time to time, previous to the execution of the agreement. Also, that the premises were levied upon by virtue of an execution against A. J. Fraser, in favor of one Biddle, which Mr. A. D. Fraser afterwards agreed to pay $1,000 to discharge. It was further shown that, on March 29, 1875, A. D. Fraser sold the premises to one Grummond for $32,500, which was paid as follows: The Moulton mortgage, $8,062; taxes, $284; Biddle levy, $1,000; mortgage to A. D. Fraser, $16,000; mortgage and cash to claimant, $6,202. The representatives of the estate insist that what was at this time paid to the claimant was all she was entitled to, and this seems to have been conceded, provided Mr. Fraser was entitled to charge, as against her, the interest he had paid on the encumbrances, previous to the making of the agreement.

In support of the right to this it was urged

First, that as it was manifestly right and just that Mr. Fraser should be allowed for this interest, it must be supposed that the parties understood their contract to so provide.

Second, that from what took place at the time of the sale to Mrs. Grummond, when the proceeds of the sale were distributed between the parties, we must infer a settlement on that understanding.

Third, what was called an equitable defence was sought to be introduced by showing the previous kindness of Mr. Fraser to the claimant, and his consequent embarrassment; (933)