officers, passengers could be deemed negligent in getting on board in that way, where no obstacle existed. Upon this question of contributory negligence, the charge leaned so strongly against plaintiff that it is not at all unlikely it determined the verdict. It seems to have been held that there was evidence of such apparent risk that the invitation to go on board as plaintiff did would not exonerate her from considerable responsibility. After drawing some distinctions between the duty resting on children and grown persons to disregard dangerous invitations and commands, the court used this language: "If a person of ordinary care and prudence, of the age, intelligence and experience of this lady, would have hesitated,-would have seen that there was danger and would have hesitated,—or would have said, 'There is danger, and I will take the risk,' then there was contributory negli gence on her part, and she could not recover. It is a question of fact for you to find. If you find that the defendant was seeking to make a proper landing there and did so; that these parties, before the defendant could make a proper landing, got aboard this boat, and this plaintiff went on board and was injured in consequence,-she cannot recover." There were several repetitions of the duty of applying the rule of ordinary care, which taken alone would perhaps be unobjectionable, but when the whole charge is taken together the force of an invitation to get on board, and the duty of plaintiff to refrain from doing so if dangerous, were not so dealt with as to give sufficient weight to the conditions of the case as presented. Where passengers are at the appointed place for embarking, with no fences or gates to keep them back, they must generally have a right, if they do so in good faith, to assume that no dangerous orders will be given, and that they may safely act on the directions of those whose legal duty it is to protect them from risk, and who are supposed to know what is safe. Some allowance must also be made for such conditions as stand in the way of full deliberation. It is applying too harsh a rule to hold that persons who have apparently but a few moments to decide between following the directions of the officers and losing their last chance of passage, should be held to be negligent in doing as they are invited to do, unless the danger is very obvious. The instruction complained of, which spoke of defendant's seeking to make a proper landing, did not include in the assumption the important element of knowledge or reason for belief of plaintiff that such attempt would be made. A knowledge of such purpose might make any act of impatience open to criticism, whereas a want of such knowledge, leaving every one where he or she must act on present appearances, would very much modify that responsibility as governed by the facts. In our opinion the case was not so presented as to save plaintiff's rights from misconstruction. The judgment must be reversed and a new trial granted. 58 187 73 664 58 187 83 42 58 187 MARTHA TAYLOR V. EDWARD M. ADAMS. Effect of pleading-Election-Defense of principal's rights—Advice of counsel-Tortious entry-Ejection of intruder. 1. After pleading and going to trial in an action begun by capias, defendant cannot insist on objections to the sufficiency of the affidavit for the writ. 2. A declaration in case contained two counts, one of which alleged the wrongful expulsion of plaintiff from premises occupied, and the other an assault and battery. Held, that as no inconsistency between these counts was pointed out, there was no error in refusing to require an election between them. 3. An agent's right to defend his principal's possession of premises is not affected by what he has said in the latter's absence about the latter's title, so long as he did not speak as agent, and has given no license to occupy the premises. 4. Advice of counsel as to his client's right to occupy premises, cannot give the client any greater right than he has already. 5. Evidence that an agent in defending his principal's possession, drew $24NW 864 d131 101 a revolver on a policeman who approached, was held irrelevant in an action against him by the intruder, as the act did not take place in the latter's presence. 6. Identification of a lot as the one referred to in a lost document, states only a conclusion, if the witness cannot give the description, and is insufficient to show the contents of the paper. 7. Where the substance of a contract cannot be shown, evidence that a party has not forfeited his rights thereunder becomes immaterial, and on motion should be stricken out. 8. The clandestine entry of a claimant upon premises of which another has been given possession by legal process, makes one a tortious intruder whom the lawful possessor may expel by force, if need be. And if the intruder is accidentally injured in the process of expulsion, his own contributory negligence should be considered in fixing responsibility therefor. 9. The reputation of the house a witness rooms in is immaterial to the issue so long as the party in whose interest he is testifying is not responsible for it. 10. An instruction to the jury to disregard mischievous and improper testimony will hardly cure the error of allowing it to remain in the case until the close of the trial; and if so allowed the trial judge should remedy the injustice on motion for new trial. Error to Kent. (V. II. Smith, J.) June 18.-Sept. 29. Defendant brings error. E. M. Adams in person, and E. F. Uhl for appellant. Geo. W. Thompson and N. A. Earle for appellee. SHERWOOD, J. The plaintiff brought her action on the case against the defendant in the Kent circuit to recover damages for alleged personal injuries received at the hands of the defendant, his servants, agents and employees, on the 28th day of December, 1882, in forcibly ejecting her from a dwelling-house in the city of Grand Rapids. The declaration contains two counts. The first alleges the occupation of the dwelling-house by the plaintiff, and her wrongful expulsion by the defendant and others of his procuring; and the second alleges an assault and battery and consequent injuries. The bill of exceptions contains all the evidence in the case, from which it appears that the house in question was two stories high, and with the lot upon which it was situated. was formerly claimed and occupied by the plaintiff and her husband; that on the 27th day of May, 1878, Mary L. Boardman purchased the house and lot upon a sale made by a circuit court commissioner under a mortgage foreclosure in chancery, in a suit wherein the plaintiff and her husband, Charles M. Taylor, were parties defendant with others; that under and by virtue of a writ of assistance in the said suit, the said Taylors were ejected from the premises, and Mary L. Boardman was put in possession of the same by the sheriff of Kent county. On December 10, 1881, Mrs. Laura E. Adams, the mother of the defendant, purchased the premises at a sale made by the circuit court commissioner of Kent county, upon the foreclosure of a mortgage against Mary L. Boardman and others, defendants, among whom were Mrs. Taylor and her husband, and received the circuit. court commissioner's deed therefor, and at the same time received possession of the premises from Mrs. Boardman under said deed, and remained in possession, and controlling and renting the same, through her agent, the defendant, down to the time of the assault complained of by plaintiff. Some of the time the premises were not all occupied by Mrs. Adams. The evidence tends to show that a Mr. Crossman was occupying the premises last and was just moving out, when, without consent or permission from any one, or the knowledge. of Mrs. Adams, the plaintiff and her husband forced an entrance into the building after Crossman had locked up the house and given the keys to Mrs. Adams, and having borrowed a few things of the neighbors, they having but recently returned from their residence in California, undertook to live in the house. It was under these circumstances that Mrs. Laura E. Adams went to the house on the day the plaintiff and her husband entered, and ordered them to leave, and on their refusal so to do, the force complained of and the injuries alleged to have been received by plaintiff were the results of the efforts of the defendant and his helpers, acting as the agents of Mrs. Adams, in expelling the plaintiff from the premises. The defendant claimed the right, in behalf of his mother, and acting as her agent, she being the owner and in the possession of the property when the plaintiff made entry, to use all necessary means and sufficient force to remove the plaintiff therefrom, and that he used no more force than was actually necessary for that purpose. The plaintiff claimed that admitting the rights of Mrs. Adams to be as defendant claims them, still he used an excess of force and thereby made himself liable for the injury complained of. The cause was tried by jury, and a verdict rendered against the defendant for $3500. The defendant appeals, and has filed seventy assignments of error, thirty-four of which relate to matters arising upon the evidence, twenty-six arising upon the requests to charge, and nine upon the charge as given by the court upon his own motion. Nine assignments were abandoned by counsel upon the argument. Motion was made to quash the writ and dismiss the proceedings on the ground that affidavits for the writ did not show a cause of action against the defendant nor the nature of the plaintiff's claims nor that the plaintiff had a cause of action. This motion was overruled and the rulings excepted to. There was no error in this. The defendant subsequently pleaded and went to trial, and final judgment was rendered. Pardee v. Smith 27 Mich. 38; Manhard v. Schott 37 Mich. 234; Miller v. Rosier 31 Mich. 475; Baldwin v. Circuit Judge 48 Mich. 525. Upon the trial defendant's counsel moved the court to compel the plaintiff to elect upon which of the two counts he would rely. The motion was properly denied by the court. The counts were not inconsistent,—at least, no inconsistency was pointed out, and the subsequent treatment of the motion by defendant's counsel very strongly indicates an abandonment of it. Cook v. Perry 43 Mich. 623. On the evening before the alleged assault occurred, the defendant had a talk with the husband of plaintiff, in which |