representation made in the bill of complaint. The defendant Abigail N. Hillerman, being a minor, refused to join as a party complainant, and Harry F. Johnson was appointed her guardian ad litem and filed the usual infant's answer, submitting Mrs. Hillerman's rights to the protection of the court.

Upon the trial, the complainants offered the ex parte deposition of Mrs. Newkirk, taken before the defendants appeared in the case. The defendants objected to the admission of the deposition, and moved that it be suppressed, and the court made an order to that effect, and a motion has been made in this court to strike this deposition from the record. The complainants attempted to make out their case by the testimony of Mrs. Billinghurst and Mary E. Davies, formerly a servant of Mrs. Newkirk. The principal evidence of the defendants consisted of the depositions of Mr. Brower, Mr. Wolseley, Judge Freeman, Dr. Bailey, the family physician, and documentary evidence. After hearing all the testimony the circuit judge dismissed the bill, and the complainants have appealed to this court.

KUHN, J. (after stating the facts). It is contended by appellants:

(1) That the deposition of the original complainant should not have been suppressed by the circuit judge at the rehearing of the case.

(2) That the testimony of Dr. Bailey as to matters which he learned in his professional relations was incompetent.

(3) That the testimony of Mr. Wolseley, the attorney who drew the deeds, was incompetent, as involving negotiations between client and attorney.

(4) That the letters offered in evidence by the original complainant to Mr. Blair were inadmissible as privileged communications between client and attorney.

(5) That the conveyance should have been set aside because of the fiduciary relations sustained by the parties as husband and wife, and on the grounds of undue influence, fraud, misrepresentation, and over-persuasion, and

that, in addition, there was an assent by silence on the part of the defendant Newkirk in all conversations with his wife regarding this transaction, and that equity will not permit him to claim any different or other agreement or state of facts than was understood and claimed by the complainant during her lifetime in his presence.

Counsel for the complainants urge strongly that a promise to reconvey was made by defendant Newkirk and that it was never carried out. It seems to us that upon this phase of the case a careful examination of the conduct of Mrs. Newkirk during the period elapsing from the time she executed the deeds up to the time she filed her bill is very material. The testimony discloses that, notwithstanding the claimed promise to reconvey and Mr. Newkirk's failure to carry it out, on April 15, 1893, she executed a very broad power of attorney to her husband, intrusting him with the uncontrolled direction of her affairs, and it is not claimed that the power was executed by Mrs. Newkirk under duress, but was apparently her free and voluntary act. From March 9, 1897, to March 19, 1904, letters were offered in evidence, written by her to her husband, in which she expresses confidence in him. On May 27, 1899, seven years after the execution of the conveyance in question, Mrs. Newkirk's confidence in her husband was further shown by appointing him executor of her estate. On March 19, 1904, 12 years after the execution of the deeds, her confidence is further displayed by a letter in which she consults him in relation to a proposed transaction in regard to this property, and in which she says:

"What do you think? If it's all right, and you think best, you better sign also, and send it to them. Otherwise destroy the option."

There is also a postal card in the record, dated May 28, 1907, containing a photograph of Mrs. Newkirk. Considerable discussion has been had with reference to the date when this card was sent, it being claimed it was sent in 1901, and the card has been submitted to us for examina

tion. The year is stamped on the postage stamp, and while the "y" is not very plain, a close inspection satisfies us that it is a "7." Moreover, the stamp is a special stamp printed by the government in commemoration of the Jamestown Exposition, and has on it, "Commemoration Series, 1907." There is nothing in the message on the card which would indicate any estrangement between herself and her husband. She concludes:

"God bless and keep you many years. Yours, Anna."

It seems to us that the conduct of Mrs. Newkirk during the time that elapsed from the time she gave the deeds in question up to the time that she filed her bill of complaint is entirely inconsistent with the theory of complainants that the defendant Newkirk had made a promise to reconvey and had failed to carry it out. As counsel in their brief contend:

"Evidence derives its probative value from its inherent probability of truth. The spontaneous word or action, which is part of the res gesto of a transaction, has greater probative force than a subsequent interested, perhaps studied, self-serving declaration. For that reason Mrs. Newkirk's correspondence and the circumstances which are the res gesto of the execution of these deeds are more persuasive than her declarations."

The evidence introduced to substantiate the allegations of the bill was the testimony of Mary E. Davies and the complainant Mrs. Billinghurst. It appears that when her mother married Mr. Newkirk Mrs. Billinghurst was 8 years old, and 9 years old when her sister, Mrs. Hillerman, was born. She attempts to testify as to conversations which she claims to have overheard at the time when she was between the ages of 9 and 15 years. The witness Mary E. Davies did not enter the employ of Mrs. Newkirk until 1896, which was four years, at least, after the birth of Mrs. Hillerman. The trial judge saw and heard both these witnesses, and had an opportunity of judging of the reliability of the testimony.

The testimony of Dr. Bailey was confined to the state of Mrs. Newkirk's general health and mental condition. He was not examined as to any information gained from Mrs. Newkirk, or as to any communication with her. It does not appear that what he stated on the stand was information which "was necessary to enable him to prescribe for her." This is necessary, in order to bring it within the prohibition of section 10181, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12826), which provides:

"No person duly authorized to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient, in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.'

We think the testimony was properly admitted. 4 Wigmore on Evidence, § 2383; Campau v. North, 39 Mich. 606 (33 Am. Rep. 433); Dittrich v. City of Detroit, 98 Mich. 245 (57 N. W. 125); Lincoln v. City of Detroit, 101 Mich. 245 (59 N. W. 617).

The testimony of Mr. Wolseley was also admissible. While the rule is that confidential communications between attorney and client cannot be disclosed by the attorney without the consent of the client, or, after his death, of the personal representative of the client, Mr. Wolseley's testimony did not come within this rule, because he was not asked and did not state any communication between himself and Mrs. Newkirk.

The letters written to Mr. Blair were objected to, because it was claimed that they were privileged communications between client and attorney. Mr. Blair was acting as trustee under the will of her father, George B. Morton, and she was beneficiary under the will. An examination of the letters does not disclose that the relation of attorney and client existed, nor is there any evidence in the record to show that relationship.

Without passing upon the questions of whether or not the circuit judge should have considered the deposition of

Anna L. Newkirk, whether the motion to suppress should be granted in this court, or whether the testimony of Hawley Newkirk was improperly admitted, for the purpose of this case, giving the deposition all the probative force it is entitled to, it would not, in our opinion, change the determination of the issues here involved.

After carefully going over the record in this case, considering the exhaustive briefs of the solicitors for complainants, but being of the opinion that the arrangement made between Mrs. Newkirk and her husband does not do violence to justice and equity, we decline to disturb the determination of the lower court.

The decree is affirmed, with costs.

MOORE, C. J., and STEERE, MCALVAY, BROOKE, STONE, OSTRANDER, and BIRD, JJ., concurred.

SOLOMON v. LOUD.

NEW TRIAL-JURY-MISCONDUCT OF COUNSEL.

On motion for a new trial, the circuit court should have set aside a verdict and judgment for defendant, when it was shown that defendant and his counsel hired and paid one of the panel, who was not serving on the jury, to watch plaintiff and his counsel and the jury, and gave him money to spend with the jurors; since the tendency of such misconduct was to bring the court and its proceedings into disrepute, whether or not it affected the final result.

Error to Iosco; Connine, J. Submitted October 14, 1912. (Docket No. 58.) Decided December 17, 1912. Rehearing denied March 20, 1913.