in their own behalf. The instruction should have been given." Farrell v. People, 133 Ill. 244.

The supreme court of Nebraska (which had previously held, under a statute similar to, but not in the exact words of, ours, that it is not error for the court on its own motion to charge with reference to the provisions of the statute and a defendant's rights under it), in a case where defendant sought a reversal upon the ground that the charge of the trial court was given without a request and was too indefinite, said:

"If counsel for accused did not regard the words, 'Nothing shall be taken against him because he did not testify,' sufficiently specific and definite, he should have drafted and presented to the court an instruction embodying his views upon that subject. Having failed to do so, he cannot complain of the vagueness of the instruction." Ferguson v. State, 52 Neb. 432.

And, further, after quoting its own language used in Metz v. State, supra, said:

"The fair and reasonable inference to be drawn from this language is that it is discretionary with the trial judge whether he will instruct or will not charge the jury upon the question where no request has been made to so instruct. * * When a prisoner is not sworn, it is the duty of the court to inform the jury, if requested so to do, that they are not to draw any inference of guilt from the fact that he did not testify."

In support of this proposition, the court quoted the Illinois statute, and cited the case of Farrell v. People,. supra.

In the case at bar the learned circuit judge filed an opinion which is before us, and in which he reviews at length some of the cases to which we have called attention. His conclusion was that, nothing having occurred in this case to call attention of the jury to the fact that defendant had not testified, the court was not warranted in making any reference whatever to defendant's rights under the statute. He held that "under a reasonable construction

of the statute, in ordinary cases, the court itself has no right to make any reference to the fact that the accused has failed to testify." This question has never been before this court. This statute was considered in People v. Hammond, 132 Mich. 429, where error was claimed because the prosecutor, in answer to statement of respondent's counsel, had referred to the fact that he had not testified. The majority opinion stated that, under the circumstances,

"We are not, therefore, prepared to hold that it was error, particularly in view of the fact that the jury were instructed that the fact that the respondent did not take the stand in his own behalf should not weigh against him in any manner."

Eliminating from our consideration those cases where the court is by statute prohibited from referring to or commenting upon the fact that a defendant has not testified, we find from an examination of all these authorities that they may be classified as follows:

1. It is not error for the court on its own motion to give such a charge as was requested in this case.

2. That the court is not required to give such a charge, in the absence of a request so to do.

3. That, where such a request to charge has been made, it is error to refuse to give it.

From the reasoning of the decisions in the first class of cases, it would seem to follow logically that they would hold it erroneous to refuse a request so to charge. If it is • proper, as a matter of law, for the court to so instruct the jury on its own motion, the conclusion cannot be escaped that a defendant would be entitled to require such statement of the law. In the second class, the courts of California and Indiana intimate strongly that it would be erroneous to refuse to give such request, and in Nebraska the court has so held. Ferguson v. State, supra.

It is contended that in the Maine and Illinois cases the circumstances were such that such a charge was made necessary, and the decisions are to be accounted for on

that ground. We do not so construe these opinions. In both States the courts hold defendants were entitled to have the law in this regard stated to the jury. The peculiar circumstances are mentioned as emphasizing the proposition. Where such request to charge has been made, we find no authority warranting its refusal. The contention of respondent in this case is founded both upon reason and authority. A respondent is protected in his right under the statute to elect not to testify. A jury, upon his request, should be informed of that right, to prevent the creation in their minds of any presumption of guilt by reason of his silence. The court was in error in refusing to give the request as presented.

The judgment is reversed, and a new trial ordered. GRANT, BLAIR, MONTGOMERY, and MOORE, JJ., concurred.

GRAY v. ELDRED.

1. EQUITY-CHANCERY PRACTICE-ANSWER-DemurreR-TRIAL. When defendants in a chancery suit have answered and inserted in their answer the usual demurrer clause denying that plaintiff is entitled to any part of the relief demanded, etc., and replications have been filed, the case must go to a hearing on the issues joined, and to final decree; it being improper for the court to determine the legal questions so raised prior to the hearing on the proofs.

2. APPEAL AND ERROR-CHANCERY APPEAL-INTERLOCUTORY DE-
CREE.

Where, in a chancery suit, the legal questions, raised by the
usual demurrer clause contained in the answer, to which repli-
cations were filed, are considered and passed upon by the trial

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court before a hearing on the proofs, followed by an appeal from the order entered, the order will be set aside and the case remanded for hearing upon proofs.

Appeal from Isabella; Dodds, J. Submitted February 16, 1906. (Docket No. 188.) Decided April 30, 1906.

Bill by Thomas Gray, supervisor, and John Dunn, highway commissioner, of Isabella township, against Sherman D. Eldred, county drain commissioner, and the Joliet Bridge & Iron Company to enjoin the closing of a contract for the purchase of certain bridges. From an order overruling certain legal objections to complainants' right to maintain the bill raised by the answers and determined before proofs were taken, defendants appeal. Order set aside and case remanded for hearing upon proofs.

The complainants, Gray, as supervisor, and Dunn, as highway commissioner, of the township of Isabella, on July 3, 1904, filed a bill of complaint for and in behalf of said township against the defendant Eldred alone, as county drain commissioner, to restrain said commissioner from proceeding to close a contract with the Joliet Bridge & Iron Company for the erection of nine bridges and two tubes, in the public highways of said township over which a ditch was laid out, and to direct said drain commissioner to relet said work at public sale. An answer was duly filed denying all the material allegations of the bill. Subsequently the bill was amended by making the Joliet Bridge & Iron Company a party defendant, and by an allegation in the bill that the complainants Gray and Dunn filed the amended bill in their own behalf as individuals, as they had property in said township liable to assessment for benefits, and also for and in behalf of said township. To the amended bill the defendants filed answers denying all its material allegations. The answers contained the usual demurrer clause, denying "that complainant is entitled to the relief or any part thereof, * * * and prays the same advantage of this answer as if it had

pleaded or demurred to said bill of complaint." The case being at issue, due notice was given of the hearing and of taking proofs in open court. Some proofs were taken on the day set for the hearing. Upon the statement of counsel for the defendants that he intended to raise questions of law going to complainants' right to maintain the bill, it was agreed that these questions should be argued before taking further testimony. The principal legal questions raised were: (1) That the complainants as individuals could not maintain the suit; (2) that the township could not maintain the suit. The judge overruled these claims, and entered a decree overruling the supposed demurrer, from which the defendants have appealed.

F. McNamara and F. H. Dodds, for complainants. I. A. Fancher, for defendant Eldred.

James H. Davitt, for defendant Joliet Bridge & Iron Co.

GRANT, J. (after stating the facts). No such practice is known to the courts of this State. When defendants in a chancery suit have answered, and in their answer have inserted the usual demurrer clause, and replications have been filed, the case must go to a hearing upon the issues joined and a final decree rendered. It is neither proper nor good practice to permit parties to then take advantage of a demurrer and bring the case into this court by piecemeal. The result would be two trials, and possibly two appeals to this court to determine the issues, and great delay. We cannot sanction such a practice, even at the request of the parties litigant.

Without determining the questions raised, the order of the court will be set aside, and the case remanded for hearing upon proofs, should the parties desire to introduce any. No costs will be allowed.

MCALVAY, MONTGOMERY, HOOKER, and MOORE, JJ., concurred.