at the State Bank of Reading, with interest at the rate of six per cent. per annum, interest payable annually from date, until paid. "ABNER MURRAY."

Indorsements are as follows:

"Oct. 2-01 interest paid in full, $6. Nov. 12th-04 by team, $2.50. Pay to the order of Phebe E. Berry, Elvin P. Starr, Admr. Estate of Byron Berry, without recourse. Pay to Geo. S. Molby or order. Phebe E. Berry."

1. The main question involved in this appeal is whether the trial court erred in refusing to permit the defendant Murray to testify to matters equally within the knowledge of Byron Berry, deceased, the payee of the note. The testimony was excluded by authority of section 10212, 3 Comp. Laws, as amended by Act No. 30 of the Public Acts of 1903 (5 How. Stat. [2d Ed.] § 12856), which provides, in part, as follows:

"When a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees or personal representatives of a deceased person, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify at all to matters which, if true, must have been equally within the knowledge of such deceased

Counsel for defendant urge that the word "assigns," as used in this statute, can include only a person to whom the property or right is transferred by a deceased person in his lifetime, and cite in support of this proposition the case of Ripley v. Seligman, 88 Mich. 177 (50 N. W. 143). This question was not involved in this case because the assignment was made by the deceased in his lifetime, and the court held that such an assignee would come within the meaning of the statute. The following language is also used:

"The statute is broad enough to cover successive transfers, or where the controversy depends upon the acts or dealings with the property of the deceased in his lifetime; and any one who is called upon to prosecute or defend some interest which is affected by the act or agreement of

the deceased party through whom he claims may invoke the protection of the statute to shield his interest from the testimony of the opposite party to matters which, if true, were equally within the knowledge of the deceased person through whom he claims."

In the case of Olin v. Henderson, 120 Mich. 154 (79 N. W. 180), Chief Justice GRANT said:

"Defendant was asked to testify to a conversation between him and Mr. Campau, deceased, in 1878, in regard to the building of this fence. This was excluded, under 3 How. Stat. § 7545, as amended by Act No. 121, Pub. Acts 1895. Counsel sought to defend the admission of this testimony upon the ground that the plaintiffs are not the assignees of Mr. Campau, but are grantees of his heirs several times removed, and that the statute only applies to a case where the property or right was transferred by the deceased in his lifetime. We think the statute is broad enough to include this case within the beneficent prohibition. This statute was held in Lloyd v. Hollenback, 98 Mich. 203 [57 N. W. 110], to include the heir. If it includes the heir, for the same reason it should include the grantee or assignee of the heir. It was also held in Ripley v. Seligman, 88 Mich. 189 [50 N. W. 143], that the assigns of a deceased person include the grantee of the grantee of the deceased person. The testimony was properly excluded."

See, also, Letts v. Letts, 91 Mich. 596 (52 N. W. 54). We believe this to be controlling, and the court did not err in excluding the testimony.

2. It is also urged that there was no proof of owner. ship of this note on the part of the plaintiff. An examination of the record discloses that there was evidence of ownership in the plaintiff, who testified:

"I know Byron Berry and Phebe Berry. She is my grandmother. I know Elvin P. Starr. I remember purchasing a note of my grandmother. It was in the fall, about 1904, that I received this note from my grandmother.

"Q. And did you pay her the consideration for the note ?

"A. Why, in services I did."

178 MICH.-10.

The administrator, Elvin P. Starr, testified:

"Q. Now this note came in the administration and distribution of the estate. This note came to Mrs. Phebe Berry?

"A. Yes, sir.

"Q. Well, what did you do with the note?

66

'A. I turned it over to Mrs. Berry."

The question of ownership was properly submitted to the jury, and they were justified in finding ownership in the plaintiff upon this testimony.

3. We are of the opinion that the question of whether or not the indorsement of $2.50 for the use of the team was authorized by the defendant was properly submitted to the jury.

We find no reversible error in the record, and the judgment is affirmed.

MOORE, C. J., and STEERE, MOALVAY, BROOKE, STONE, and OSTRANDER, JJ., concurred. BIRD, J., did not sit.

PRUNER v. DETROIT UNITED RAILWAY.

1. PLEADING-DECLARATION-JOINDER OF PARTIES-COUNTS. No reversible error was committed on the trial of an action for negligence in which two defendants were joined by one count of the declaration, while each of the other counts severally charged one defendant with the injury, in overruling an objection to the declaration for misjoinder of parties.

2. SAME TRIAL-PRACTICE-ABATEMENT and RevivAL.

Circuit Court Rule 27, permitting plaintiff to go to trial as to joint defendants without discontinuing and requiring the

jury to return a verdict against the defendants that are liable, applies to actions of tort as well as to actions ex contractu.

3. EVIDENCE-EXCLAMATIONS OF PAIN-PERSONAL INJURIES. Natural exclamations of pain made by plaintiff 30 minutes after her injury were competent, unless they amounted to narrations of past conditions.1

4. SAME-PHOTOGRAPHS.

When they are properly identified and their accuracy is proved, photographs of the place of injury are admissible, but pictures obtained after the accident should not be introduced without pointing out to the jury any changes that have occurred; the determination usually is of a discretionary nature, and rests with the trial judge.9

5. TRIAL-ARGUMENT-MISCONDUCT OF ATTORNEY.

Improper argument of plaintiff's attorney to the effect that no one would sustain plaintiff's injuries for any amount of money, where he withdrew his remark when defendant's attorney objected, was not so prejudicial as to require that the case be reversed.

6. SAME CHARGE.

Nor will the court reverse the judgment because the trial judge omitted to instruct the jury as to the question of plaintiff's negligence, which he might properly have referred to, no request being made for such instructions.

Error to Wayne; Murfin, J. Submitted April 11, 1912. (Docket No. 18.) Decided December 17, 1912. Rehearing denied March 20, 1913.

Case by Nancy Pruner against the Detroit United Railway and the city of Detroit for personal injuries. As to defendant city a verdict was directed by the court. Judgment for plaintiff against the remaining defendant which brings error. Affirmed.

'As to how near the main transaction declarations must be made in order to constitute part of the res gestæ, see note in 19 L. R. A. 733.

On the admissibility of expressions or statements of present pain made during sickness or subsequent to injury, see note in 24 L. R. A. (N. S.) 253.

As to the use of photographs as evidence generally, see note in 35 L. R. A. 802; and as to the effect and conclusiveness of photographs introduced in evidence, see note in 15 L. R. A. (N. S.) 1162.

Brennan, Donnelly & Van De Mark and Corliss, Leete & Joslyn (William G. Fitzpatrick, of counsel), for appellant.

Merriam, Yerkes & Simons, for appellee.

KUHN, J. In July, 1909, the Michigan Central tracks in the city of Detroit were crossed on Baker street, which runs, approximately, east and west, by a bridge. The approach of the bridge, on the easterly end thereof, commences about 30 feet west of the westerly curb of Fourteenth street, which crosses Baker street. The incline from this point to the top of the bridge is about 120 feet. Across the north end of the bridge, from about the center of the easterly approach, there is a handrail, and immediately south of the rail is a plank walk about 6 feet wide for the full length of the easterly approach. Immediately south of the end of this plank walk, and at a distance varying from about 1 to 2 inches at the lower, or extreme easterly, end of the approach, to about 6 inches at the top of the easterly approach, is the north rail of the north, or westbound, street car track of the defendant company. It is the claim of the plaintiff, supported by competent testimony, that on the 19th day of July, 1909, she was walking east on the Baker street bridge; that she had left the top of the bridge and was walking down the incline; that an open, single-truck Baker street car was coming up the incline at a fast rate as she was going down, and as the car passed the plaintiff it was jumping or teetering up and down to such an extent that the fender of the car hit the planks under her feet, tore them loose, threw her down and against the car, and seriously injured her. Plaintiff brought suit by declaration in the court below against the city of Detroit and the Detroit United Railway. On the trial, when the proofs were closed, the court directed a verdict in favor of the city of Detroit and submitted the case to the jury on the liability of the Detroit United Railway. The jury found a verdict in plaintiff's favor, and judgment was entered thereon. A motion