supervisors, subsequently sanctioned by the circuit court with the approval of the prosecuting attorney. The court thereupon overruled the objection. The ruling was correct. We have held that the office of prosecuting attorney was quasi judicial, and that he and any one associated with him must be exclusively the representative of public justice, and stand indifferent as between the accused party and any private interest. Meister v. People 31 Mich. 99; Sneed v. People 38 Mich. 248; People v. Hurst 41 Mich. 328. But Mr. Smith's position does not appear to have been assailable. He was not employed by any private interest, or any interest hostile to the prisoner, and there was no showing that he had or was likely to have any feeling or desire that would lead him to seek an unjust conviction. The board of supervisors to some extent represents the people in criminal matters, and the power to determine the compensation of counsel employed to aid the prosecution, is vested in that board. It was not improper, therefore, for the board to have a voice in the selection of counsel, or that, with the approval of the prosecuting officer, they should make all the arrangements. It is not to be assumed that counsel of their selection will be subject to improper influences.

Objection was made to the introduction of any evidence under the information, on the ground that as it failed to allege the means used or the manner in which the alleged murder was committed, it failed to give the respondent the information respecting the nature of the charge against her, which was necessary to enable her to procure her evidence, and be secure against being taken by surprise on the trial. If the information were to be tested by common-law rules, this objection might be insurmountable. But in Sneed v. People 38 Mich. 248, a similar information was held sufficient under the system of procedure established by statute in this State; and indictments equally general have been sustained against the same objection in other states. Cathcart v. Com. 37 Penn. St. 109; Campbell v. Com. 84 Penn. St. 187; State v. Shay 30 La. Ann. 114; People v. King 27 Cal. 507; Newcomb v. State 37 Miss. 383; State v. Morrissey 70

Me. 401; Williams v. State 35 Ohio St. 175. Under our system the information has for its basis a full examination into the facts upon a complaint before a justice; and as the examination is returned to the circuit court, the defendant will be enabled to avail himself of it in that court if the prosecution were to attempt to depart from it, and convict him of something upon which no examination had been had. It is true, the respondent, when brought before the justice, may, in his discretion, waive an examination; but the arrest is always preceded by the complaint and if examination is waived, it must be supposed the defendant considered the disclosure of facts by the complaint as sufficient for his protection.

The record contains thirty-nine assignments of error, the majority of which relate to the admission and rejection of evidence. Most of the rulings appear to us so unmistakeably correct as to require no discussion. A few A few may be mentioned.

The theory of the prosecution was that the respondent murdered Henderson by administering strychnine to him while he was unwell at her house, and that his wife, who was her daughter, was accessory to the crime. Having put in evidence tending to prove this theory, they were allowed to show that the night following Henderson's death the respondent and her daughter slept together, and that they were heard whispering together a long time after retiring. This was objected to, and the defense justly contend that there was nothing very strange or suspicious about it. But this might be said, perhaps, of almost any isolated fact in the conduct of the accused contemporaneous, or substantially so, with the supposed crime, and if evidence of it can be rejected on that ground, it would be impossible to prove what the accompanying facts were. But this must generally be necessary where the crime is to be made out on circumstantial evidence, and the jury must be trusted to distinguish the significant facts from those which are unimportant. It is not likely that, standing alone, they would

look upon the whispering of two women in bed as a very suspicious circumstance.

The prosecution was permitted to show ill-feeling on the part of respondent towards Henderson, extending back two years before his death. This was objected to as too remote. It was certainly going back a good ways, but we cannot say that the trial judge exceeded the limits of a just discretion in receiving the evidence.

Some exceptions were made to the judge's charge, but as we think, without cause. It appears to have been altogether fair. Objection is also made to the action of the judge in amending the entry of the judgment a month after it was made. But if this was necessary to make the record correspond to the fact, there was certainly no want of power. It seems that the entry as made failed to show that the verdict was one of murder in the first degree, and also gave the sentence incorrectly. This misprision of the clerk it was entirely proper to correct, and there was nothing in the lapse of time which could constitute an impediment. The judgment must be affirmed.

The other Justices concurred.

THE MCCORMICK HARVESTING MACHINE COMPANY V. JOHN MCKEE, JR. AND JOHN MCKEE, Sr.

Promissory note-Proof of execution-Evidence-Delivery to third person—Remission of excess in judgment after review.

In an action on a note the signature thereto proves itself if delivery only is denied by the affidavit filed with the plea.

The agent of a manufacturing corporation was one of a firm organized for selling its goods. The firm owed money and the agent furnished it from funds of the corporation, taking as security the note of one of the partners on which the maker's father was surety. The note was payable to the corporation and was afterwards taken up and another given. In a suit on the last note defendants claimed that it

had never been intended that it should be delivered to the payee. Held proper to refuse to allow defendants to show that certain members of the firm had, with others, projected a partnership for selling the plaintiff's goods sometime before the note was given; or to show what funds were in the firm's hands and that the agent had charge of and used them; or what the surety's intention was, when he signed the first note, as to its delivery; or what property belonging to the firm the corporation had taken possession of on finding that their agent was short in his accounts.

Complaint cannot be made of the exclusion of evidence if it is afterwards admitted.

A note that is given to the payee's agent and is turned over to the payee before it is due and applied by him on an indebtedness of the maker, will sustain a recovery by the payee if he has no knowledge of any arrangement between the maker and the agent whereby the latter was to keep the note in his own hands and use it in his own business. The amount of a judgment in excess of the ad damnum clause can be remitted even after review.

Error to Kalamazoo. (Mills, J.) June 22.-October 10. ASSUMPSIT. Defendants bring error. Affirmed.

Oscar T. Tuthill for appellants.

Howard & Roos for appellees.

SHERWOOD, J. The plaintiff, a foreign corporation organized under the laws of the state of Illinois, on the 13th day of December, 1880, and for a long time previous thereto, was doing business in the village of Kalamazoo. During said period one Solomon L. Beardsley acted as general agent for, and conducted the business of, said plaintiff at Kalamazoo, which was selling agricultural implements and machinery manufactured by them; and during the same period said Beardsley, John C. Bloom and said defendant John McKee, Jr., entered into a copartnership for the purpose of selling agricultural implements in Kalamazoo county, under the name of John McKee, Jr. & Co., each to furnish to the firm five hundred dollars as capital stock. Said firm received and sold the goods of the plaintiff, and had an account with it. Beardsley had the principal charge and management of

the business of the firm, and particularly the financial department.

In the fall of 1879 J. McKee, Jr. & Co. owed a debt of five hundred dollars. Beardsley raised the money to pay it; did so by obtaining John McKee, Jr.'s, note for the amount, signed by his father, the other defendant, as surety, running to C. H. & L. J. McCormick or order, (the name under which the plaintiffs were then doing business,) due on the first day of March, 1880. This note was delivered to Beardsley who furnished the money thereon from the funds of the plaintiff then under his control, as was understood at the time by defendant J. McKee, Jr., and was by him regarded as representing his part of the capital stock of the company. On the 13th day of December, 1880, this note was renewed by the defendants, and the first note taken up. The business was done by Beardsley.

Suit is now brought by the plaintiff to recover the amount due on this last note. The declaration is on the common counts, with notice that plaintiff would introduce the note in evidence thereunder. Plea, general issue, with notice of set-off, accompanied by an affidavit of defendant John McKee, Jr., denying the delivery of the note to the plaintiff or to any person for it. Defendants also claim that when said note was made and delivered to said Beardsley, it was with the understanding and agreement upon his part that he should not deliver it to the plaintiff, but should himself hold the same till paid, and that when so paid it should be from the funds of the firm of John McKee, Jr. & Co., and that defendants should never have any trouble on account of the note. The plaintiff's counsel claim that at the time this new note was given, Beardsley had an account of his own as agent; and also one of John McKee, Jr. & Co. to settle with plaintiff; that John McKee, Jr. & Co. owed the plaintiff, and that this new note was taken in the then name of the plaintiff, at the request of said Beardsley, and the payment postponed a few months to enable him to use it with the plaintiff in making his settlements with the company; that in four days thereafter Beardsley went to the plaintiff in