Mo. 550. It would not be sufficient to show that the trees were cut by persons employed by the defendant to cut timber on his own land, and appropriated by them to the use of the defendant: Cushing v. Dill, 2 Scam. 460; and where the master would not be liable if he cut the trees himself, he will not be liable for the acts of his servants in obeying his instructions: Russell v. Irby, 13 Ala. 131; but a master is liable for a trespass committed by his servants, with his knowledge and approbation, or subsequent sanction: Erum v. Brister, 35 Miss. 391; and if one, intending to commit a trespass on public lands, through mistake cuts down trees on the land of an individual, he is liable under the statute: Givens v. Kendrick, 15 Ala. 648; Perkins v. Hackelman, 26 Miss. 41; 59 Am. Dec. 243; Emerson v. Beavans, 12 Mo. 511. The burden of showing probable cause, or unintentional mistake, and reasonable care to avoid it, is on the defendant: Walther v. Warner, 26 Id. 143; Holliday v. Jackson, 21 Mo. App. 660; Keirn v. Warfield, 60 Miss. 799.

Treble damages can only be allowed in case single damages are assessed: Clark v. Field, 42 Mich. 342. The jury can only assess single damages. When a proper case is made out for trebling the damages, it can only be done by the court: Brewster v. Link, 28 Mo. 147; and see Newcomb v. Butterfield, 8 Johns. 342; and as the jury can lawfully assess single damages only, it will be presumed that they have done so, in the absence of anything to the contrary, so that the court may treble the damages: Cooper v. Martin, 6 Mo. 634; George v Rook, 7 Id. 149. The court in Missouri is not authorized to treble the damages assessed by the jury in a general verdict, in a case where the petition contains counts under the statute and at common law: Lowe v. Harrison, 8 Id. 350; Brewster v. Link, supra; Shrewsbury v. Bawlitz, 57 Id. 414; nor where the petition claims for a wrongful entry, and for timber cut and carried away, and the verdict is general, not finding the value of the timber: Ewing v. Leaton, 17 Id. 465; Labaume v. Woolfolk, 18 Id. 514; Herron v. Hornback, 24 Id. 492; but these decisions are made under a statute which provides that "the party so offending shall pay to the injured party treble the value of the thing so injured, broken, destroyed, or carried away." In Michigan and in New York, where the statutes are the same, the offender is to pay treble the damages assessed for the trespass: Achey v. Hull, 7 Mich. 423; Van Deusen, 29 N. Y. 9, 25.

The word "owner," as used in the statutes, means the person who has the estate in fee. Therefore, to maintain an action under the statute, the plaintiff must aver and prove that he was the owner of the land in fee: Wright v. Bennett, 3 Scam. 258; Whiteside v. Divers, 4 Id. 336; Jarrot v. Vaughn, 2 Gilm. 132; Clay v. Boyer, 5 Id. 506; Edwards v. Hill, 11 Ill. 22; Abney v. Austin, 6 Ill. App. 49; Missouri etc. R'y v. Robbins, 10 Kan. 473; Achey v. Hull, 7 Mich. 423; McCleary v. Anthony, 54 Miss. 708; but the owner may recover whether he be in possession or not: Fitzpatrick v. Gebhart, 7 Kan. 35; Sullivan v. Davis, 29 Id. 28. The objection that the declaration does not contain a sufficient averment of the plaintiff's ownership to support a finding in his favor should be raised by demurrer: Clark v. Field, 42 Mich. 342. It has also been held that the United States is a "person," within the statute of Kansas, which makes it an offense for any person to cut down, injure, destroy, or carry away any tree "standing, being, or growing on the land of any other person": State v. Herold, 9 Kan. 194.

MEASURE OF DAMAGES IN TRESPASS OR TROVER FOR TIMBER CUT ON ANOTHER'S LAND: See Foote v. Merrill, 20 Am. Rep. 151; Isle Royal Mining Co. v. Hertin, 26 Id. 520; Railway Co. v. Hutchins, 30 Id. 629; Tilden v. Johnson, 36 Id. 769, and note; Tuttle v. White, 41 Id. 175; Skinner v. Pinney, 45 Id. 1; AM. ST. REP., VOL. I.—82

Ayres v. Hubbard, 58 Id. 361; and see Herdic v. Young, 93 Am. Dec. 739; and for coal or ore mined on another's land, see Barton Coal Co. v. Cox, 17 Am. Rep. 525; Illinois etc. Coal Co. v. Ogle, 25 Id. 342; Waters v. Stevenson, 29 Id. 293; McLean County Coal Co. v. Lennon, 33 Id. 64, and note; Franklin Coal Co. v. McMillan, 33 Id. 280; Austin v. Huntsville Coal etc. Co., 37 Id. 446; Blaen Avon Coal Co. v. McCulloh, 43 Id. 560, and note; Coal Creek Mining etc. Co. v. Moses, 54 Id. 415, and note.

PEOPLE EX REL. DAFOE v. HARSHAW.

160 MICHIGAN, 200.]

PROVISION IN CITY CHARTER THAT "COMMON COUNCIL SHALL BE JUDGE OF ELECTION AND QUALIFICATIONS OF ITS OWN MEMBERS, and shall have the power to determine contested elections," is conclusive, and not subject to review.

MAYOR OF CITY IS MEMBER OF COUNCIL, within the meaning of a provision in its charter that "the common council shall be the judge of the election and qualifications of its own members, and shall have the power to determine contested elections," when the charter also provides that "the mayor, recorder, and aldermen, when assembled together and organized, shall constitute the common council of the city." LEGISLATURE HAS POWER TO LEAVE CITIES TO DETERMINE TITLE OF THEIR OWN OFFICERS without further review; for the remedy by information, as well as by quo warranto, is not a matter of right, but of discretion, and may be withheld by the legislature.

INFORMATION to determine the title of the respondent to the office of mayor of the city of Alpena. The opinion states the facts.

L. G. Dafoe and R. J. Kelley, for the relator.

A. R. McDonald and J. D. Turnbull, for the respondent.

By Court, CAMPBELL, C. J. The present proceeding by information in the nature of quo warranto was filed to determine the title of respondent to the office of mayor of Alpena. The plea averred an election, and subsequent determination by the common council that he was duly elected. The only question is, whether the action of the common council is final in such matters.

By the charter of Alpena it is provided that "the mayor, recorder, and aldermen, when assembled together and organized, shall constitute the common council of the city of Alpena," etc.: Laws of 1871, vol. 2, sec. 6, p. 79. All of the corporate powers of the city are vested in this body. By section 15 it is declared that "the common council shall be the judge of the election and qualifications of its own members,

and shall have the power to determine contested elections, to compel the attendance of absent members, to determine the rules of proceedings, and pass all by-laws and rules necessary and convenient for the transaction of business not inconsistent with the provisions of this act."

As this court has on several occasions determined that where such a provision is contained in a city charter it is conclusive, there is no occasion to discuss the question of authority: People v. Mayor of Port Huron, 41 Mich. 2; Cooley v. Ashley, 43 Id. 458; Alter v. Simpson, 46 Id. 138; Doran v. De Long, 48 Id. 552. The same provision is found in many of our charters, and is incorporated in the general statutes for the incorporation of cities: Howell's Statutes, sec. 2514.

There can be no doubt that under the section in question the mayor is a member of the common council.

City charters here, as in England, do not always agree in the constituents of this body. In some cases there is a separate council, which is only one of the parts of the city legislature, and requiring the approval of another board, or of the mayor, acting separately, as the governor does, to complete their action. But most of our cities in their earlier stages, if not permanently, have had a council where the mayor sits in person, and over whose action he has no veto. And in all such corporations he has been deemed a member as clearly as the alderman; and so far as any such provision as this is concerned, there appears to be no reason for a distinction.

The value and importance of the remedy by information, where not otherwise provided for, is recognized. But that remedy, as well as the one by the old writ of quo warranto, never existed as a matter of right, but was subject to the discretion of the court in disputes concerning corporate officers. The courts exercised a broad discretion, and in offices of short duration there is not much to favor interference in ordinary cases. In Rex v. Dawbeny, Strange, 1196, it was held not proper in the case of a church-warden, who, although having important local functions, was chosen annually. The information in its modern form is a statutory and not a common-law proceeding; and where a remedy is not one of right, but of discretion, it would be going too far to hold that it could not be withheld by the legislature in cases where formerly the courts could have withheld it.

Our constitution in express terms vests all the judicial power in courts, and no such power can exist in a legislative body.

It has nevertheless been deemed wise to avoid the delays and difficulties of legal disputes, to provide for a final adjudication of the title to office, not only of members of the legislature, but of all the state officers and judges, either in the houses of the legislature or in the board of state canvassers: People v. Goodwin, 22 Mich. 496. Our legislature has been careful to leave these matters in all proper cases open to judicial controversy; but in cities, where the tenure of office is short, and is of local rather than general interest, it has been common from a very early period in creating these municipal legislatures to give them the same power of determination in local offices that is given to the state legislature, or its houses, in state offices.

In People v. Sweeting, 2 Johns. 184, the supreme court of New York denied leave to the attorney-general to file an information against a local officer, when there could be no determination of the case before a new election. The same rule was laid down by the supreme court of Massachusetts in Commonwealth v. Athearn, 3 Mass. 285; and in State v. Tudor, 5 Day, 329, 5 Am. Dec. 162, where a case came up on error, the supreme court of Connecticut, although discovering error, refused to send the case back for a new trial after the office had expired. All of these cases show that the remedy is, at common law, not a matter of right, and being so, it cannot be held beyond the power of the legislature to leave cities to determine the title of their own officers without further review.

Judgment was rightly given for defendant, and should be affirmed.

CHAMPLIN, J. I concur in the result.

INFORMATION TO QUESTION TITLE OF MEMBER OF CITY COUNCIL WILL NOT LIE when the city charter makes the council the judge of the election and qualifications of its own members: See note to People v. Rensselaer etc. R. R., 30 Am. Dec. 49.

QUO WARRANTO IS NOT WRIT OF RIGHT, but rests in the discretion of the court: Note to People v. Rensselaer etc. R. R., 30 Am. Dec. 50; Commonwealth v. Arrison, 16 Id. 531; but see State v. Harris, 36 Id. 460. It will not be issued where the term of office has expired, or will expire, before the trial: State v. Tudor, 5 Id. 162; People v. Loomis, 24 Id. 33.

PEOPLE V. BARKER.

[60 MICHIGAN, 277.]

OPINION WHICH DISQUALIFIES JUROR IN CRIMINAL CASE is of that fixed character which repels the presumption of innocence of the accused, who is already condemned in the juror's mind; and such disqualification does not arise because it will require some evidence to remove impressions or opinions formed from rumors, newspaper statements, or other sources. OURCES OF INFORMATION ARE IMPORTANT IN DETERMINING EFFECT LIKELY TO HAVE BEEN PRODUCED UPON MIND OF JUROR, in a criminal case, and the influence likely to be exerted upon his judgment; but impressions made upon the mind which lead towards certain conclusions, whether reached or not, will always require other impressions to be made to eradicate the former ones, or to lead to different conclusions, or in other words, will require some evidence to remove them. QUESTION WHETHER JUROR IN CRIMINAL CASE IS DISQUALIFIED BY REASON OF HIS OPINION MUST BE ALWAYS ONE OF DEGREE; and the trier is called upon to determine whether the opinion entertained is of that fixed or permanent character which disqualifies him from coming to the case in a fair and impartial frame of mind, unaffected with prejudice or favor to either party.

ACCUSED IS NOT PREJUDICED BY IMPROPER OVERRULING CHALLENGE FOR CAUSE, where he thereupon peremptorily challenges the juror, and accepts a jury without exhausting his peremptory challenges.

COURT IS INVESTED WITH CERTAIN DEGREE OF DISCRETION IN SELECTION OF JURORS, which is to be exercised by seeing that proper and competent men are selected; and so long as the case of a party is not prejudiced by the exercise of such discretion, he cannot complain. COURT MAY EXCLUDE JUROR FROM PANEL OF ITS OWN MOTION, where, during the impaneling, he exhibits such a reckless disregard of his duty as to make it quite evident that he is unfit to serve, by failing to appear in court at the time to which it had adjourned, and remaining in a room of a hotel, where he was found after an hour's search, playing pool.

QURT MAY ORDER JUROR DISCHARGED AND ANOTHER JUROR DRAWN IN HIS STEAD, where, after the jury had been selected and sworn, and before any further proceedings were had in the case, it was ascertained that such juror was an alien.

ALIEN IS NOT QUALIFIED IN ANY RESPECT TO SIT UPON JURY, IN MICHIGAN, and a jury selected and sworn, but containing an alien, consists of only eleven jurors.

ACCUSED IS NOT IN JEOPARDY, until a jury of twelve competent men are selected and sworn.

ERROR CANNOT BE ASSIGNED on a ruling to which no exception was taken. OPINIONS OF MEDICAL EXPERTS HELD ADMISSIBLE, under the circumstances, in a criminal prosecution for murder, as to how death occurred. CONFESSIONS ARE PRESUMED TO HAVE BEEN VOLUNTARILY MADE, in the absence of all evidence; and when the accused alleges the contrary, he is called upon to at least rebut such presumption. EVIDENCE OF CONFESSIONS IS PROPERLY ADMITTED, where there was nothing at the time of their admission to show that they were not voluntary; although it subsequently appeared that a prior confession had been ob