That the statute requires the jurors to be kept together by the officer until agreement or discharge has been held not to necessitate a new trial in case of their separation, unless there is a showing of prejudice."

The same authority, page 1251, says:

"The court may, in its discretion, allow proper medicine and medical attendance to be furnished to the juror. That the sick juror is separated from the others does not affect the validity of the proceedings if he is not tampered with; and that a physician was with the juror was held to be immaterial, where the other jurors were in an adjoining room with the door open. It is proper for the court to put a juror in charge of a sworn officer to enable him to consult a physician, and the court may provide for the comfort of the sick juror by allowing him to lie down during the remainder of the proceedings."

In 2 Thompson on Trials (1st Ed.), p. 1906, it is said:

"From the foregoing, it follows that the mere fact of the separation of the jury pending a civil trial, or the trial of a misdemeanor, in some jurisdictions without reference to the nature of the case, especially where the separation consists of the temporary absence of a single juror, unless there are other circumstances of misconduct or abuse, will be no ground for a new trial. But in other jurisdictions, the opposing rule, applied for the most part in capital cases, obtains, that such a separation creates a presumption against the integrity of the verdict, and will be ground for a new trial, unless it affirmatively appear that the jurors were not thereby subjected to any improper influence. The State fails to do this, when it does not account for all the period of his separation from his fellows, if it was at a time and place where he might have been improperly approached."

An examination of the authorities generally indicates that in order to warrant the granting of a new trial under such circumstances, it must be shown that the separation was prejudicial, or that the facts of the separation were such that a presumption would

arise that there was prejudice, in that the juror might have been improperly approached. City of New Albany v. McCulloch, 127 Ind. 500 (26 N. E. 1074); Edward Thompson Co. v. Gunderson, 10 S. D. 42 (71 N. W. 764) ; Nichols v. Nichols, 136 Mass. 256; People v. Buchanan, 145 N. Y. 1 (39 N. E. 846); Waller v. People, 209 Ill. 284 (70 N. E. 681); People v. Bonney, 19 Cal. 426; Stout v. State, 76 Md. 317 (25 Atl. 299). The facts here presented do not show that the juror was subjected to improper influence, and we are of the opinion that they do not raise any presumption that he was. During the entire time of separation he was in charge of a sworn officer of the court, and in fact during the first separation, when the physician was present, the trial judge was also present.

There is force, however, in the contention of counsel that the litigant is entitled to the participation of all the jurors in the deliberations of the jury; and as soon as it became apparent that it was necessary to separate one of the jurors from the others because of physical indisposition, it unquestionably would have been a proper course to instruct the jury that during the time of such separation further discussion of the case should be dispensed with. However, we are not satisfied that the failure to give this instruction would warrant us in saying as a matter of law that a new trial must necessarily be granted. The trial judge, upon a motion for a new trial, found:

"The mere fact that because of sickness one of the jurors was temporarily separated from the jury during their deliberations did not operate to the defendants' prejudice."

With this we are inclined to agree, and therefore refuse to reverse the case on this ground.

Error is assigned because of improper argument of counsel for plaintiff. In his closing argument to the jury, he said:

"These men that go into that kind of business unfurl the black flag; they go into that kind of business saying that, 'We prefer the dollar to the life of the human being; we prefer the dollar to the feelings of the wife and mother; we prefer the dollar to the poverty and penury it causes.'

It does not appear that this language was used with reference to persons engaged in the liquor business generally, or to those who are conducting that business in compliance with the law. Under plaintiff's theory and the proofs of this case, these defendants were violators of the law, and it must be said that the language used referred to these men when violating the law. Admitting that the language was somewhat intemperate, when the attention of the court was I called to it he said:

"I think, Mr. Hawley, that statement should not be taken. I will instruct the jury not to consider it."

If it can be said that this argument is improper we are of the opinion that the instruction of the court then and there given corrected it.

The following also appears in the record:

"Mr. Bunting: I desire an exception to the statement of Mr. Hawley that this woman has a sober man for a son, and she is entitled to a sober example to the son she gave birth to."

The record does not disclose in what connection this argument was used, nor does it appear that when it was made the court was asked for a ruling upon the language and a request made to give instructions with reference thereto to the jury. Unless a ruling is requested of or made by the trial court, an assignment of error based upon an exception to improper argument will not be reviewed. See Pierson v. Railroad Co., 149 Mich. 167, 172 (112 N. W. 923); Formiller v. Railway, 164 Mich. 653, 661 (130 N. W. 347); Meade v. Railway, 165 Mich. 489, 493 (130 N. W.

1114); People v. Sartori, 168 Mich. 308, 317 (134 N. W. 200); Crane v. Ross, 168 Mich. 623, 632 (135 N. W. 83); People v. Danenberg, 176 Mich. 337 (142 N. W. 347); Marx & Son v. King, 177 Mich. 662, 667 (144 N. W. 553); Eberts v. Sugar Co., 182 Mich. 449 (148 N. W. 810).

A reference of counsel to the suffering of plaintiff's husband was immediately and properly corrected by the court's saying:

"I have no doubt but counsel meant all right, but I don't want any misunderstanding in regard to this matter, and the exception is well taken, and counsel will try and avoid any reference to suffering, because the jury cannot consider that, and I will tell you more about it when I get to considering my final instructions."

We have examined the other assignments of error, and are satisfied that no prejudicial error was committed by the court with reference thereto.

The judgment is affirmed.

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

MORTON v. DE YOUNG.

PARTNERSHIP- -ACCOUNTING-SALARY OF ONE PARTNER-APPEAL AND ERROR.

Evidence considered, in a suit between members of a partnership, to determine the right of one to compensation for his services, and held, to sustain the conclusion of the circuit judge awarding in the decree a salary of a stated amount; the case being held to belong to that class of

disputed questions of fact as to which the conclusion of the circuit judge who heard and saw the witnesses is entitled to especial weight and is therefore controlling.

Appeal from Bay; Collins, J. Submitted January 17, 1915. (Docket No. 92.) Decided March 18, 1915.

Bill by Omar J. Morton against John J. De Young for an accounting and dissolution of partnership. From a decree in favor of defendant, complainant appeals. Affirmed.

Stoddard & McMillan, for appellant.

Cooley & Hewitt, for appellee.

BROOKE, C. J. The learned trial judge who heard this cause filed a written opinion therein as follows:

"These parties were partners in business from August 1, 1908, until the dissolution of the partnership subsequent to the filing of the bill in this case on March 8, 1913.

"During all of the time the defendant was the general manager of the business. The complainant at no time took any part in the business management, although he was open and ready for advice and assistance when called upon, and at times gave advice in matters in and about the business. It is undisputed that complainant's salary for a short time after August 1, 1908, to January 1, 1909, was $15 per week, and that during the year 1910 the complainant was entitled to a salary of $100 per month.

"Defendant drew a salary from January 1, 1910, until the dissolution of the partnership, at the rate of $100 per month, which the defendant claims he is entitled to. The complainant contends that from and after January 1, 1911, the defendant was not entitled to any salary at any amount.

"The business, while not a large one, has been a prosperous business for the amount invested, and on dissolution has repaid the amount advanced, with good additions. This fact is not a controlling fact in the case, but it is a circumstance which may be fairly considered in disposing of the whole question.