It bears a close resemblance to the employment of a clerk, to be paid for his services by a share of the profits of the business; and, as between themselves, they were tenants in common of the crops.

It is contended that the English rule should be applied, viz., that a person in possession by consent of his co-tenant cannot be required to account to his co-tenant for a share of the profits arising from his use of the premises; but we are of the opinion that this cannot be carried so far as to permit the co-tenant in possession to have the exclusive use of the premises, after entry or demand of possession, until the crop growing at the time of the entry or demand shall mature. As to such crops, the co-tenant may be permitted to share the proceeds, upon an accounting in equity upon a bill filed for partition, if justice requires it. See Freem. Co-ten. § 426; Gage v. Gage, 28 L. R. A. 842, 843 (66 N. H. 282), note; Gayle v. Johnston, 80 Ala. 395. And in such case the cost of production should first be deducted, which would amply protect the cropper. Early v. Friend, 78 Am. Dec. 668 (16 Grat. 21), note. Apparently, the complainants' bill, when drawn, was intended to concede this.

If Cook was a party before the court to a sufficient extent to have the right of appeal from the order denying him the right to intervene, we should still be compelled to affirm the order of the circuit court as to him. He professed to have a mortgage on two-thirds of certain crops, taken after foreclosure proceedings were commenced and lis pendens filed. The record showed that Homer N. Strong, having title to an undivided half of the premises, had given complainants a mortgage thereon; and Cook must be held chargeable with notice of that fact, and of the rule that a purchaser at a foreclosure sale takes the mortgagor's interest in the crop, even against a tenant or assignee. Coman v. Thompson, 47 Mich. 22. The chattel mortgage was given on April 28, 1894, some three months after the decree was entered in the foreclosure case, and after the commencement of publication of the

notice of sale. It was apparent that, before these crops ́could mature, some one would acquire the interest of Homer N. Strong in the premises, with all of his rights of possession and partition, which were necessarily incident. We must hold, therefore, that this chattel mortgage in no way affects the rights of the complainants; and, while it may be enforced against the interest of Robert D. Strong, it has nothing to do with this partition proceeding, and the court properly refused to allow the petitioner to inter

vene.

Lindsay, as well as Cook, made his contract with notice of the complainants' rights, and must be held to have known that the contract was subject to interruption. He cannot complain, therefore, if his one-third interest is subjected to a proportionate share of the expense of the receiver in harvesting and marketing the crop.

Complainants, on acquiring title, immediately demanded possession and a share of the crop, and were denied both. The court gave them one-half of the crops, apparently not taking account of the cost of raising the crop. This cut Lindsay off without anything for his labor, except as he might obtain it from the share of Robert, and the decree also made him liable for one-half of the costs in the partition case. It gave nothing to Robert D. Strong for his expenses in raising the crops, and left him, after paying Lindsay the agreed share, but one-sixth. While there is some evidence in the record upon the subject, we cannot form an accurate opinion of the amount that, should be allowed to Robert D. Strong for his share of the expenses in raising said crop. We think that so much of the decree as relates to the crops should be modified by directing the allowance to Lindsay of one-third of the proceeds of the crop, less his one-third of the expenses of the receiver; that Robert D. Strong be allowed reasonable compensation for the use of teams, seed, and machinery, and the expenses reasonably incurred in raising, harvesting, and marketing the crop; and that the residue be divided equally between him

and the complainants, subject to the payment by each of one-third of the expenses,-the trial court to take further evidence, if it shall be by the judge deemed necessary, to ascertain the amount of said Strong's allowance. The defendants, Strong and Lindsay, will recover costs of this court against the complainants, and the complainants will recover costs against Cook.

The other Justices concurred.

PEOPLE v. TICE.

1. CRIMINAL LAW-ALIBI-INSTRUCTIONS.

An instruction in a criminal case that the jury should carefully scrutinize any evidence in relation to an alibi, for the reason that an alibi is a defense that is easily proved and hard to disprove, is not erroneous.

2. SAME-TRIAL-IMPEACHMENT OF WITNESSES.

Upon a trial for arson, respondent's wife was asked if, in a conversation in which E. participated, in the presence of J., she did not assent to certain statements made by E. She denied the conversation, and that she was present at the place mentioned on the occasion referred to. Thereupon J. was permitted to testify that in such conversation E. made a statement concerning respondent's whereabouts on the night the crime was perpetrated, and that respondent's wife agreed with E. Held, that J.'s testimony was admissible.

3. NEW TRIAL-REASONS FOR DENIAL-FAILURE TO STATE.

The failure of the court to file reasons for the denial of a motion for a new trial is not reversible error where no request therefor was preferred.

Error to Cass; Coolidge, J. Submitted November 4, 1897. Decided December 7, 1897.

115 219 f134 1249

Simeon Tice was convicted of arson, and sentenced to imprisonment for 16 years in the state prison at Jackson. Affirmed.

Cassius M. Eby, for appellant.

Charles E. Sweet, Prosecuting Attorney, for the people.

HOOKER, J. The defendant was convicted of the offense of arson, upon the testimony of one alleged to be an accomplice. Upon the trial, this witness first denied knowledge of the defendant's guilt, and after a recess, during which. time he had an interview with one or more of the officers, and with his mother and sister, changed his testimony, and stated that the defendant had committed the act in his presence. In his charge, the learned circuit judge discussed the conduct of the witness mentioned, at length, and the rules by which the jurors were to determine the value of his testimony, in connection with the unusual and peculiar circumstances under which it was given; and several assignments of error are based upon this part of the charge. They raise the question whether the charge was prejudicial, in that it gave undue prominence to certain circumstances. Our examination has satisfied us that the charge was fair, and we deem it unnecessary to discuss the assignments in detail.

The defendant offered evidence tending to prove an alibi. Referring to it, the court said:

"I will say that, while the instruction given with reference to an alibi is true,-that this is the law,-you are to carefully scrutinize any evidence in relation to an alibi. An alibi is a defense that is easily proven and hard to disprove. Therefore you will be careful and cautious in examining the evidence in regard to an alibi."

What was meant by the reference to "the instruction given with reference to an alibi" does not appear. If, as is probable, it refers to a request to charge upon that subject, which may have been read to the jury for aught that appears in the record (the "voluntary charge" only

being given), it may have been necessary by way of modification; and, if not, it was a proper caution to give to the jury, as it is notorious that an alibi affords the readiest avenue of escape from merited punishment, through false testimony.

The testimony of the witness Jewell was admissible. The defendant's wife, Ida Tice, was asked if, in a conversation in which Etta Jennings participated, in the presence of Jewell, she did not assent to certain statements made by Etta. She denied the conversation, and that she was present at the place mentioned on the occasion referred to. Thereupon Jewell was permitted to testify that in such conversation Etta Jennings said that "she knew Sim was not out, because she stayed there all night," etc.; that Ida Tice was not three feet away, and all present were talking together, and Mrs. Tice said, “Etta stayed there that night, and Sim was not out."

It is alleged that the cause should not have been submitted to the jury, for the reason that there was not sufficient evidence to sustain a conviction. It does not appear that the claim was made upon the trial, but, if it had been, the point is not sustained by the record, as there was testimony showing circumstances which tend to corroborate the story of Jennings. Counsel also claimed the right to review the denial of a motion for a new trial, notwithstanding the fact that the judge failed to state his reasons therefor. This point is ruled by the case of McRae v. Lumber Co., 102 Mich. 488. We are not prepared to hold that it is error for a court not to file reasons for the denial of a motion for new trial, where no request has been made that he do so. Such a request should have been filed or made previous to or at the time of the hearing and decision of said motion.

The judgment of the circuit court is affirmed.

The other Justices concurred.