tracts, had been ready at all times to perform said contract on her part, and this court, on examination of the record, sustained this finding.

In the instant case, can it be said that Lyons or his assignee, Rice, after default in making payments, was ready at all times to carry out the terms of the contract? While the trial court has made no findings of fact, a careful examination of this record does not lead us to such a conclusion. It is true that defendant Rice claimed, on his direct testimony, that on one occasion he went to complainant's house prepared to make a payment on the contract, but would not say for sure that he had the money with him, and, at a later session of the court, on cross-examination, claimed to have made several efforts for payment with the same result. It does not seem reasonable, however, that if he had made a bona fide effort to carry out the contracts he could not have done so. He did not have any difficulty in making a tender both to her and her attorney after notice of forfeiture. As we do not find from the record that such a genuine effort to pay was ever made before the forfeiture was declared, the facts do not come within the ruling of Getty v. Peters, supra.

In discussing this case, Mr. Justice OSTRANDER, in the case of Gould v. Young, 143 Mich. 572, 577 (107 N. W. 281), said:

"Indeed, in that case it was expressly found that the vendee was always ready to perform the contract, and that, at the time notice of forfeiture was given, the vendor had no title to the premises. We think no authority will be found for the broad claim asserted at the hearing that defendants may remain in possession without making payments, or being ready or offering to do so, because complainants have, since the contract period began, mortgaged the land.”

It is also claimed that Rice was in such possession of the premises, through the signs that were posted on the premises, as to preclude the complainant from seeking relief in a court of equity to quiet title, citing Beidler v.

City Bank of Battle Creek, 172 Mich. 381 (137 N. W. 717). The premises were vacant lots, and no personal occupancy was had by Rice. There certainly could be no necessity to bring a possessory action under these facts when no personal occupancy or interference would be encountered in the taking of possession. Complainant denies ever having parted with possession of the property, and, moreover, under the terms of the contracts, she was entitled to possession upon default by the vendee. There is no question that, at the time of service of notice of forfeiture, defendants were in default of the payments.

The case of Lambton Loan, etc., Co. v. Adams, 132 Mich. 350 (93 N. W. 877), is relied upon to sustain the proposition that it was necessary for complainant to resort to one of three actions: (1) A suit in equity to foreclose the contract. (2) An action in ejectment. (3) Proceedings under the statute. In that case, however, the vendee was in actual and physical occupation of the premises, and the court said, speaking of the statutory proceeding to obtain possession:

"The statute was designed to provide a speedy and summary remedy for obtaining possession of lands held over contrary to these agreements, and in doing so it also sought to give the lessee or vendee another opportunity to retain the benefit of his contract by payments within five days, where the failure to pay was his sole default."

The proceeding commented upon was purely a possessory action, and no such proceeding was necessary in the instant case.

We are of the opinion that complainant is entitled to the relief prayed for, and the decree is therefore affirmed, with costs against the defendants Samuel J. Lyons and Merton L. Rice; costs being waived as against the defendant Bessie C. Lyons, for the reason that she was only a passive agent in joining her husband in the quitclaim deed to Rice.

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

PEOPLE v. SAUERBIER.

1. HOMICIDE-MANSLAUGHTER - TRIAL-CRIMINAL LAW-CHARGE. Respondent, who was convicted of manslaughter committed after an altercation in which the parties decided to go into the country and fight it out, respondent striking deceased soon afterwards and knocking him down, was not prejudiced by the charge of the court that if he acted in self-defense, fearing great bodily harm or danger to life, he should be acquitted; and the instructions were not open to the objection that they confused the issue, for if they were inapplicable on the ground that the parties were engaged in carrying out an unlawful purpose, the instructions were not harmful.'

2. SAME

ASSAULT DURING PERPETRATION OF UNLAWFUL ACT. The fact that respondent prepared himself for the fight, and attempted to carry out the unlawful purpose, warranted a conviction of the offense.

3. SAME-MURDER IN SECOND DEGREE.

Upon expert testimony that the injuries found upon the deceased victim of the assault could not have been produced by a blow of the fist or fall on the sidewalk, and that respondent surreptitiously left the scene immediately after the assault, returning in a few minutes, sufficiently justified the court in submitting to the jury the question whether the crime amounted to murder in the second degree.

4. SAME-REQUESTS-TRIAL.

Nor did the court err in refusing to give several requests in the exact language used, where he instructed the jury fully, covering the same ground in the general charge.

5. SAME-DISTINCTION AS TO OFFENSES-INSTRUCTIONS.

It was error to instruct the jury that the practical difference between the two offenses was the length of the maximum penalty, but a verdict finding respondent guilty of the lesser offense rendered the instruction harmless.

'On the question of the standpoint of determination as to danger and necessity to kill in self-defense, see note in 3 L. R. A. (N. S.) 535.

For insulting words or conduct as a provocation to homicide, see note in 4 L. R. A. (N. S.) 154.

6. SAME TRIAL-FURTHER INSTRUCTIONS.

The court was not in error in limiting further instructions asked for by the jurors, subsequent to their retiring, to the points desired by them, without instructing them a second time as to the matters of self-defense, or of reasonable doubt, that had been covered in the charge.

7. TRIAL-CRIMINAL LAW.

It was within the discretion of the court to refuse to communicate to counsel for the accused the contents of a written communication sent to him by one of the jurors through an official of the court: his action in taking no notice of the matter was proper, and so long as he did not hold communication with any of the jury, respondent suffered no prejudice.

Exceptions before sentence from Berrien; Bridgman, J. Submitted November 15, 1912. (Docket No. 6.) Decided January 3, 1913.

Walter Sauerbier was convicted of manslaughter. Affirmed.

Roger I. Wykes, Attorney General, and William H. Andrews, Prosecuting Attorney, for the people.

Coolidge, Riford & White, for defendant.

MCALVAY, J. Respondent was prosecuted in the circuit court for Berrien county upon an information in which he was charged with the crime of murder. The trial resulted in a verdict against him of manslaughter. The case is before this court on exceptions before sentence.

There is little dispute in the testimony in the case upon the circumstances surrounding this homicide. On November 21, 1911, deceased, Gilson Crumb, who lived at Coloma, a village located about 10 miles from Benton Harbor, went in the afternoon with another man to Benton Harbor, where they visited some saloons and drank some beer. Between 10 and 11 o'clock that night they went together to the street car station in Benton Harbor, for the purpose of taking the electric interurban car to Coloma,

That evening respondent and two companions came from St. Joseph to Benton Harbor by street car, about the hour of 7 o'clock, where they also visited saloons and drank some whisky and considerable beer. They arrived at the street car station after deceased and his companion, for the purpose of taking the car back to St. Joseph. When they arrived at this station, deceased and two or three others were standing on the cement sidewalk in front of the station, near the storm door. Soon after arriving there respondent in some manner became engaged in conversation with deceased and his companion, during which each expressed a willingness to engage in a fight, and deceased called respondent a vile name. Respondent suggested that there was too much light to fight at that place, and they went down the street about 10 or 15 rods, where it was quite dark. All the others remained on the sidewalk in front of the station. The witnesses could not see what these parties did while they were together, and the only statement of what occurred is that of respondent, who says deceased desired to fight him, and started to strike him, but that he held him and talked him out of the idea of fighting. They came back in a short time to the station and joined their companions. Soon after deceased used some vile language, claimed to be directed to respondent, stating, "If he will go out into the country, I will lick him." Soon after this respondent went into the street car station, as he testifies, thinking from deceased's remarks that he desired to go out into the country, and that he went into the station for the purpose of taking off his overcoat, and to go with him and fight him. When respondent went through the storm door, deceased stood at the side or near it. He at once took off his overcoat, and said to the station agent, "I am either going to give him a licking or take a licking." He then came out of the station, through the same door, and immediately struck deceased with his left fist a blow somewhere upon his head, which knocked him down upon his back, causing unconsciousness from which he never recovered. He was