text:
    Octave Trudo v. LeGrand Anderson.
    On the trial in the Circuit Court without a jury, rulings of law which might affect the finding of facts — as upon the admission or rejection of evidence — must be brought before the Supreme Court by exceptions, as upon a trial before a jury. But when the only question is whether the faots found support the judgment, the finding of facts is to be treated as a special verdict, and no exception is necessary, as the reoord itself presents the question as fully as it could be presented by exceptions.
    A Judge’s finding of facts must set forth the facts founds and not merely the evidence tending to prove them.
    "Whore an objection was made to an assignment of errors which was purely technical, and it was evident the defendant in error could not have been misled, the Court permitted an amendment to the assignment to be made at the’hearing.
    •An authority in an agent to sell property, does not authorize him to exchange it for other property.

      An agent can not ratify an act done by himself beyond the scope 'of Jhis authority, ♦ so as to bind his principal.
    Where one’s property is disposed of without authority, by the person having it in charge, the owner may bring replevin therefor without a previous demand.
    And he may do this notwithstanding‘the property is in the hands of one who has bought in good faith, and without notice of the title of the real owner.

      Heard May 21st and 22d.

      Decided July 17th.

    Error to Van Burén Circuit.
    Trudo replevied of Anderson a horse. The case was tried by the Circuit Judge, without a jury, and the following is the finding:
    “ 1st. That the plaintiff was, in the month of July, 1860, in Canada West, the owner of the horse in question; that for several years before that time the plaintiff had been a laborer in the employ of one John McAlister, in Canada West, and left the horse upon the premises of said John McAlister, in Canada West, to be sold by said McAlister; that, shortly after this, the said McAlister left Canada West and repaired to the western part of the State of Michigan on business, without having sold or authorized the sale of the horse; that, shortly after McAlister■ left Canada West for western Michigan, one' Samuel Miller, who was in McAlister’s employ, and left on his premises in Canada, exchanged the horse in question, without authority, for another horse; that, in four or five days after this, McAlister returned to his place in Canada West, and was informed of the exchange of horses, and declared to Miller that he suspected the horse received in exchange was a stolen horse; a few' days after McAlister returned, he bargained the horse received in exchange away to one Patrick Gleason, on the agreement and understanding that, if no one came for the horse as a stolen ’ horse, he was to belong to Gleason; that said •horse, so received in exchange for the horse in question, was ■ then delivered to said Gleason; that, within a short time thereafter, one Daniel Rogers, of Van Burén county, Michigan, called on said McAlister and claimed that the horse so as aforesaid received by Miller and^trausferred by McAlister to Gleason, was stolen, and that he was in pursuit of the horse, and exhibited an advertisement and description of the horse, and threatened to replevy the horse; that said McAlister then informed said Rogers that if the latter could show his authority, he, said McAlister, would give up such horse; that Deputy Marshal Moore, of Detroit, was referred to, who informed said McAlister that Rogers was “ all Tight;'''1 that said horse was then obtained from said Gleason and delivered up to said Rogers, and the money received of Gleason for the horse refunded to him by McAlister.
    “2d. The defendant resided with his son, LeGrand R. Anderson, in Yan Burén county, and an old man by the name of Herrick had lived about five or six years about three miles from defendant’s; that a young man, representing himself as the son of Herrick, called on defendant’s son with the horse in question, and represented to defendant’s son, when defendant was present, that he had bought a piece. of land of Eastman or Spencer, of Dowagiac, near the west line of Olean and east line of Wayne townships, and wished to obtain thirty dollars to make the first payment; that defendant’s son referred him to defendant, and that defendant let him have thirty dollars upon the agreement that the horse in question should be pledged to defendant for the re-payment of the thirty dollars in five days, and that if the money was not paid in five days the horse should belong to defendant, and that, accordingly, the horse was delivered to defendant, and that said money has not, nor has any part of it been paid.
    “ 3d. That at or before the time of the payment of said thirty dollars by defendant and the delivery of the horse to him, the defendant was not informed nor had any knowledge that there was any question about the title to said horse, but that within two or three days after, the defendant was informed there was a question about the title to said horse, and was informed that Dan. Rogers asserted that the horse had been gobtained by young Herrick in exchange for a stolen horse; that, after being so informed, the defendant rode the horse several miles to the premises of one Benjamin A. Murdock, the son-in-law of defendant, and there left him; that Murdock told defendant that the horse was too small for him (defendant) to ride, and that he take his (Murdock’s) horse to ride home, and that he (Murdock) would turn the horse in question in his (Murdock’s) pasture; that defendant then stated that • the horse in question would be a good one .for his (Murdock’s) girls to ride, and he would leave it, and the defendant then left the horse in question with Murdock; that, when the horse was so left at Murdocks, five days had passed from the time of the delivery by Herrick.
    ’“4th. That said horse was at Murdock’s when taken on the writ, and that after he was taken on the writ, and before service on defendant, McAlister demanded the horse as his; that the defendant refused to yield up the horse on the demand unless paid the amount he had advanced, and that McAlister refused to pay so much; that no other demand was made; that the horse was worth seventy - five dollars, and that the value of the use is fifty cents a day.
    “The conclusion of law upon these facts I find as follows :
    “1st. The acts and sayings of McAlister, and Miller, and Gleason, under the authority given by the plaintiff, passed the title. to the horse in question for the money received of Gleason, unless the horse received by Miller was stolen, whereby the horse in question was obtained by fraud, or unless the plaintiff disaffirmed the transaction, on the ground of want of authority in McAlister to transfer the horse in question through the medium of an exchange; and the case wholly fails to show, by any sufficient legal evidence, that the horse received by Miller was stolen; and there is nothing in the case to show that the plaintiff dis-affirmed the transaction, on the ground of want of authority of McAlister.

      “2cl. That, upon the facts, a demand by the plaintiff before action was indispensible.
    “ 3d. That the facts do not establish a case of general ownership or special property of the plaintiff in the horse in question.”
    Judgment upon this finding having been rendered for defendant, plaintiff sued out a writ of error, and assigned for error specially “ that the written finding of facts and law by the Circuit Judge in said cause does not support the said judgment entered in said cause, and that upon the said finding judgment was entered in favor of the said LeGrand Anderson, whereas it ought to have been entered for the said Octave Trudo.”

      Douglass & Andrews, for plaintiff in error:
    The conditional sale, made by McAlister, of the horse received by his servant in exchange for the horse of the plaintiff, seems to have been stated by the Circuit Judge as evidence of a ratification, by the plaintiff, of the exchange of horses, but it is clearly incompetent for that purpose, as it does not appear that McAlister had himself any authority to make or ratify such a contract, and, at most, it is but matter of evidence, which is immaterial in a finding or special verdict. — Delafield v. Illinois, 26 Wend. 227.
    The exchange made by McAlister’s servant, therefore, being neither authorized' nor affirmed by the plaintiff, did not pass the title to the plaintiff’s horse;- and the question arises, whether the plaintiff, whose chattel has been unlawfully taken from him, can, in an action of replevin, recover such chattel from the possession of a bona fide purchaser, without proof that he demanded the property of the purchaser before the commencement of the suit.
    No such condition precedent to the bringing of a suit is required by our statute, which provides the remedy by, replevin “whenever any goods or chattels shall have been unlawfully taken, or unlawfully detained.” — Comp. D. §5005.

      That the taking by the defendant, in this case, was unlawful, there can be no doubt. Any unauthorized inter-meddling with the goods of another is unlawful, and no» court has ever held that honesty of intention', or bona fide payment of value, would relieve such an act from its unlawful character. — 2 Greenl. Ev. § 622. And we are unable to» perceive upon what principle the plaintiff in this ease is called upon to prove’, not only that the chattel is his, and that it was unlawfully taken by the defendant, which is all that is required by the statute; but, also, that It was subsequently unlawfully detained. For it is only to show an unlawful retention of a possession, lawfully acquired, that proof of demand and refusal could be relevant at all. In replevin, as in trover, demand and refusal constitute matter of evidence merely, and not a condition precedent.— 1 Ghit. Pl. (11 Am. Ed) 147, 160; _ 2 Greenl. Ev. §644; 9 Bing. 475; 5 B. & Ald. 847.
    And courts have accordingly sustained the action of replevin in cases similar to the present, and without previous demand. — 8 Me. 38; 11 Me. 28; 19 Me. 281; 17 Ark. 172; 6 Binn. 2; 1 Hemp. 10.
    So trespass, to sustain which there must be, not merely a conversion, or an unlawful detention, but an unlawful taking-, will lie in a case like the present. — 1 Cush. 536 ; 5 Mass. 341; 38 Me. 80.
    So, a taking of chattels, under circumstances like the present, is held to be unlawful, and of itself, without any subsequent demand, sufficient proof of a conversion for which trover will lie. — 3 Bing. 603; 3 C. & P. 99; 4 C. & P. 400; 6 East, 538; 13 N. H. 494; 2 Stark. 306 ; 11 Cush. 11; 9 Bing. 471; 10 Wend. 390 ; 2 Dowl. & Ry. 1.
    Some decisions in the State of New York are undoubtedly opposed to these views; but they can be sustained on neither principle nor authority. They are based partly upon the exploded doctrine that the taking is not tortious if the defendant acquired the possession of the property by peaceable delivery from the first wrong - doer, and partly upon the notion that it would be unjust to subject the dona fide purchaser of stolen property to an action until an opportunity had been given him to make restitution.
    All the cases admit, that if goods are forcibly taken from a trespasser by one without title, the true owner may bring trespass against either. Why the remedies of the rightful owner should depend upon a transaction between two trespassers, with which transaction he has no connection, and of which he could, ordinarily, have no knowledge; it is difficult to conceive.

      E. C. Hinsdale and C. A. Kent, for defendant in error:
    1. There is nothing presented by this case whieh can be reviewed by this Court. No exceptions were taken to the rulings of law embodied in the finding, and this Court will not now enquire into the propriety of anything in that decision. — Rule 90 of C. C; Sweetzer v. Mead, 6 Mich. 107.
    In a more recent case, where an exception was taken to the conclusion of the Judge’s finding, the Court reviewed the whole case.— Wood v. La Rue, 9 Mich. 161.
    The case in 5 Mich., above cited, shows that in this case, the Court will only consider whether the judgment rendered by the Circuit Court conforms to the Judge’s finding, but the correctness of the judgment upon the conclusions of law will scarcely be seriously questioned.
    2. Even if the Court would review the case upon error without exception, it would only consider defects or errors specially assigned.
    To say that “the written finding of facts -and law does not support the judgment,” can certainly mean no more than that the judge’s conclusion of law upon the facts found does not warrant the judgment; and we submit, that this “ writtén finding of law ” upon the facta does “support the judgment.
    3. Should the Court examine and pass upon the facts found by this case, we submit that they justify the judgment. It is quite clear that, if the plaintiff had himself made the trades, which are shown in this case, he couid have no relief against the defendant, who is a bona fid& holder, even though the horse received upon the exchange were shown to have been stolen.
    But it is not shown, nor is there evidence from which it can be inferred, that the horse received by the plaintiff’s “agent and sold by him, was stolen, and the only possible ground upon which the plaintiff could recover, is that the agent had exceeded his authority, and that the plaintiff had not acquiesced in his acts.
    While it may be true, that an authority to sell does not, when strictly applied, authorize an exchange, yet we submit that this is not a case to be governed by the technical meaning of the word “sell” as applied to the authority given to factors. The relations of the principal and agent, in this case — the latter as the employer of the former for years — justifies the assumption, that the plaintiff, Trudo, having confidence in the judgment and business capacities of McAllister, requested him to dispose of the horse in sueh a manner as he might deem best for his interest. The agent did dispose of the horse, and as the result of his doings received the money for Mm through the medium of the exchange.
    We submit, too, that the acquiescence of the plaintiff in his agent’s acts, amounted to a ratification of them. No disaffirmance is expressed by him, and, for aught that appears, he had full opportunity to disaffirm. — Story on Agency, §§ 253, 255, 256; 14 S. & R. 27; 12 Johns. 300; 6 McLean, 103.
    4. The defendant held the horse in good faith, and a demand was necessary, before suit, in order to substantiate that defendant unlawfully held the horse. — 3 Hill, 348 ; 8 Barb. 333; 6 Johns. 44; 4 E. D. Smith, 357 ; 13 Ill. 315; 3 Eng. (Ark.) 564; 4 Harr. 171; 7 Gray, 155; 6 Ind. 455; 5 Sandf. S. C. 161; 23 Ill. 427.
   Christiancy J.:

It is insisted by tbe counsel for tbe defendant in error that, as no exception was taken in the Court below to the rulings of law embraced in the "finding, this Court will not now inquire into the propriety of any thing in the decision.

Doubtless any ruling of law which might affect the finding of facts, as upon the admission or rejection of evidence, must be brought before the Court by excejDtion, as upon a trial before a jury. Such ruling of law would, in the language of the 90th rule of the Circuit Courts, be “embodied in the finding of facts.” But when the only question is whether the facts found support the judgment, the general conclusion of law from all the facts found can with no propriety be said to be embodied in the finding of facts, but is merely the result to be deduced from it: and in such case the finding of facts must, on principle as well as by the rule cited, be treated as a special verdict: and no exceptions are necessary, as the record itself presents the question as fully as it could be presented by exceptions. The object of the statute and of the rule was to give to the parties the same facilities for review in an appellate court, whether the trial at the Circuit should be by the Court or by a jury.

But it is urged that this decision is in conflict with the decision of this Court in Sweetzer v. Mead, 5 Mich. 109. There is no such conflict. By reference to the record and the briefs (neither of which appear in the report) it will be seen that there was a bill of exceptions setting out the evidence, to a small portion of which only exceptions were taken, as well as to the exclusion of other testimony offered. There was also a finding of facts by the Court, and an amendment to the finding; and we were asked to pass upon the whole evidence, which would, in effect, have been a review of the Judge’s finding: and it was held that we could, in such case, only regard the exceptions taken at the trial, and the further question, whether the judgment conformed to the finding*: in other words, whether the facts found authorized the judgment given. The language of the opinion cited by counsel has no reference to the particular question here involved.

But it is further objected on behalf of the defendant in error, that the assignment of errors is not sufficient to raise the question, as upon a special verdict. The twelfth rule of this Court requires all assignments of error to be special. The only assignments in this case are, first, the general assignment, and, second, “that the written finding of facts and law by the Circuit Judge does not support the judgment.” Technical accuracy would have required the assignment to be “that the finding of facts did not support- the judgment.” But on looking at the record and the assignment, we are satisfied such was the intention of the assignment, and that the defendant in error could not have been misled as to the question intended to be raised: and considering the objection as purely technical, we gave the plaintiff in error liberty to amend or to have the record considered as amended. We must therefore consider the case upon the finding as upon special verdict.

The Court found as a fact that the plaintiff, in July 1860, was the owner of the horse in question; and to warrant the judgment in favor of tl^e defendant, it must appear, first, that the property, or the plaintiff’s right of possession, had been divested, or second., we must be satisfied that the Court below was right. in holding that a demand of the property was necessary before the institution of the suit. To authorize the judgment on the first ground the Court must have found, as a fact, the ratification by the plaintiff of the exchange made by the servant of his agent, and of the subsequent conditional sale by McAlister of the horse received in exchange; for the simple authority of McAlister to sell the horse for the plaintiff would not have authorized the exchange if made by McAlister himself; much less when made by his servant: and the conditional sale of the horse received in exchange could in no way bind the plaintiff, unless ratified and adopted by Mm. But while the finding sets forth the particular facts and circumstances in evidence with more particularity than necessary, and is therefore thus far more in the nature of evidence than of a finding of facts, it fails entirely to find directly the fact of ratification, or any fact or state of facts which would, in law, constitute such ratification. Certain facts are set forth in reference- to a conditional sale made by McAlister of the horse received by his servant in exchange for the plaintiff’s horse: but these facts, though probably with others considered by the Judge as circumstances tending to the proof of ratification, cannot be treated as a finding of that fact by the Court. If admissible and sufficient to authorize the inference of ratification, they were certainly no more than mere evidence, and it was for him to draw the inference. A finding of facts should set forth the facts found, not merely the evidence tending to prove them. Upon a special verdict the Court can draw no mere inference of fact which the jury have failed to draw from the evidence. But we see nothing in this- evidence which, without other facts not found, could even tend to the proof of ratification: as the plaintiff himself does not appear to have had any connection with the conditional sale, nor even to have been informed of it, either before or after the transaction. And an agent cannot ratify an act done by himself, or his 'servant beyond the scope of the agency, so as- to bind the principal: otherwise an agent might enlarge his o.wn powers to any extent wfithout Ms principal’s consent.

It remains only to inquire whether a demand was necessary before bringing suit. This must, we think, depend upon the question whether the taking by the defendant was lawful. The finding of facts sufficiently shows that the original taking by the party with whom the exchange was made by McAlisters servant was unlawful and wrongful, whether the horse given in exchange was stolen or not: as the servant who made it had no shadow of authority, but was a mere' stranger to the plaintiff. The plaintiff had not given to his agent, McAlister, any _ indicia of Ownership, but the bare possession, to enable him as agent to sell the horse; but not even the possession was ever trusted by the plaintiff to the servant. The plaintiff therefore appears to have done no act, and to have been guilty of no negligence, calculated to mislead others, or to induce a belief that even McAlister (much less his servant) was the owner, more than generally happens in the ordinary case of leaving property in. the hands of an agent for sale. Had the ordinary mode of doing such business required any particular safeguard for the protection of third persons, which he had omitted, or done any act calculated to impose upon them, and others had been prejudiced by such act or omission, the case might have been different: but in the absence of all such proof, the taking by the person who received the horse in exchange being unlawful, those who received the possession and claim through such wrongful taker, stand merely in his place, and can claim only in his right.

But the counsel for the defendant in error insists this principle does not apply to a purchaser in good faith and without notice, and that to render the defendant liable to a suit for the property, a previous demand should have been made. This exception to the principle just stated seems now to be established in the State of New York, as the cases' cited by defendant’s counsel sufficiently show; and the authority of these cases has been recently followed in Indiana: — Wood v. Cohen, 6 Ind. 455. So far as the New York rule does not depend upon the distinction between replevin in the cepit and the detinet, it seems to rest upon the principle that “ a man who innocently purchases property supposing he should acquire a good title, ought not to be subjected to an action until he has an opportunity to restore the goods to the true owner.”

The apparent equity of this rule would, on first view, seem to recommend it. But upon a careful examination its justice, as a rule of law, will be found to be more apparent than real, as it must depend upon the peculiar circumstances of each particular case: and its injustice would be manifest if applied to a case where a previous demand would impose a serious inconvenience upon the plaintiff. It is not easy to give a satisfactory reason why the true owner, who has been guilty of no wrong or negligence, should be prejudiced by a transaction between the wrongful taker of his property and a third person, or how such transaction cari impose upon him a new obligation. In many cases a previous demand would impose upon the owner a serious inconvenience, and in some cases might be equivalent to a denial of his right; and “ if he happen to find in whose possession Ms property lies, a demand will perhaps raise an alarm, and hurry botL the wrong doer and the property beyond the plaintiff’s reach.” — Per Cowen J, 3 Hill, 360. Why should the right of the plaintiff to recover his property be made to. depend upon the good faith of the defendant, when that good faith is no defense against the plaintiff’s right of property or possession when a previous demand has been made? The principle upon which the New York rule rests might properly have some weight with the Court upon a question of costs, where these are discretionary, or might justify the Legislature in refusing costs to the plaintiff where a previous demand could have been made without serious risk or inconvenience, and the suit has been brought without such demand. But we think the principle of the rule can not properly be extended to tbe right of action.

We do not think the question of intent, or good faith, in a party receiving possession from a wrongful taker in such cases, and where the owner has been guilty of no wrong or negligence, can have any bearing upon the right of recovery in a civil suit for the property or its value; and such is clearly the weight of authority both in England and the United States. — (See cases cited by counsel for plaintiff in error, and opinion of Cowen J. in Barrett v. Warren, 3 Hill, and cases cited).

The taking in this case, as shown by the finding, was clearly a trespass, and would have constituted, of itself, a conversion in trover without proof of a demand and refusal. We can see no greater reason for a demand in an action of replevin under our statute. The New York Revised Statutes kept up, in the writ and declaration, the distinction between replevin in the cepit and that in the detinet: and this distinction seems to have been thought to have some bearing upon the question of a previous demand in such a case.— (See Barrett v. Warren, above cited. See, also, Ingalls v. Bulkley, 13 Ill. 315). It seems to have been thought that a defendant could not be said wrongfully to detain the property in such cases till he had refused to give it up on demand; and this is the ground taken by the defendant in error here. But the answer to this is, that our statute, so far as regards the form of action, recognizes no distinction between replevin for taking and that for detaining; but the action is, in'form, in all cases for detaining only.— Comp. L. §§5010 and 5028. The declaration therefore will be supported, as well by proof of an unlawful or wrongful taking, as of a wrongful detention.

The judgment must be reversed, and a judgment entered in this Court for the plaintiff, for six cents damages and the costs of both courts.

The other Justices concurred.

      By striking out the words “and law” in the speoial assignment of errors.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    John Robertson v. William L. P. Little and others.
    Wlien a case made after judgment in the Circuit Court is settled and filed with the clerk of that court, either party desiring action upon it may cause it to he certified to the Supreme Court.
    The Supreme Court cannot dismiss a case made after judgment which has never been transmitted to and filed in that Court.

      Heard and decided July 14th.

      W. L. Webber moved to dismiss a case made after judgment.
    It appeared from the affidavits On which the motion was based, that defendants had judgment in the Court below July 5th, 1860; that a case was subsequently made, and settled by the Circuit Judge for review in.this Court, which was filed with the Clerk of the Circuit Court February 11th, 1861, but the same has never been transmitted to this Court, and no action has been had thereon since the filing.

      J. G. Sutherland, contra,
    objected that the Supreme Court could not dismiss a case which was not yet in that Court.
   By the Court.

When a case made after judgment has been settled and filed, in the Circuit Court, either party has the right to cause if to be certified to this Court for our action; and it must be brought here before any motion can be made in this Court upon it. We cannot dismiss a case from the Court which was never in it.

Motion denied.


author: Christiancy J.: Campbell J.:

text:
    George W. Washburn v. The People.
    A defendant in a criminal cake may waive his right to have a preliminary examination before an information is filed against him, as well when called upon to plead to the information as when brought before the examining magistrate. And if at the time of pleading he make no objection on the ground that such examination has not been had or waived, he must be understood to admit that it has beon had, or that he has waived or then intends to waive it.
    It is not necessary that an information should show on its face that a preliminary examination has been had, or been waived, in oases where the defendant is 4 not a fugitive from justice. If the defendant intends to insist upon the want of such examination, he should take the objection by plea in abatement setting up the fact that it has not been had, or by motion to quash based on a proper showing by affidavit.
    The verification of a criminal information, by the oath of the prosecuting attorney, that “he knows the contents of the foregoing information, and that he has good reason to believe and does believe the' same to be true as therein set forth,” is sufficient.
    A child seven years of age is competent to testify: the question of his credibility is for the jury.
    The prisoner was on trial for the murder of his wife. The prosecution gave evidence, under objection, showing that, before the alleged murder, the prisoner had been arrested on a charge of crime, hut of what crime, or upon whom committed, was not shown. The defense then, on cross-examination, proved that the charge was of some offense committed upon the wife. Held, that evidence of this fact was admissible, as tending to show hostile relations existing between the prisoner and the deceased, which would hear upon the question of motive and tend to prove malice. And it being made to appear by the cross-examination that the arrest was for an offense upon the wife, the error of admitting evidence of an arrest, without showing for what, was thereby cured.

      Heard May 3d, 1861.

      Decided July 17th.

    Error to Washtenaw Circuit, where plaintiff in error was proceeded against by information for the murder of Lucy A. Washburn, his wife, as follows:
    “ State of Michigan, Washtenaw Gounty, ss.:
    The Circuit Court for the County of Washtenaw. Sylvester Abel, Prosecuting Attorney for the county of Washtenaw aforesaid, for and in behalf of the People of the State of Michigan, comes into said Court, in the June term thereof, in the year of our Lord one thousand eight hundred and sixty, and gives it here to understand and he informed, that George W. Washbnrn, late of the city of Ypsilanti, in the county of Washtenaw and State óf Michigan, heretofore, to wit, on the twenty-first day of May, in the year of our Lord one thousand eight hundred and sixty, with force and arms, at the city of Tpsilanti aforesaid, in and upon one Lucy A. Washburn, in the peace of God and the People of this State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said George W. Washburn aforesaid feloniously, wilfully, and of his malice aforethought, her, the said Lucy A. Washburn, did seize by the throat, choke, strangle, and suffocate, by means of which said seizing by the throat, strangling and suffocating, the said Lucy A. Washburn then and there instantly died.”
    There were several other similar counts, and also counts for manslaughter; and the information was verified as follows:
    “ State of Michigan, Washtenaw County, ss.:
    Sylvester Abel being duly sworn, deposes and says, that he knows the contents of the within and foregoing information, and that he has good reason to and does verily believe the same to be true, as therein set forth. S. A ret.
    Sworn and subscribed before me at Ann Arbor, this 15th day of June, a. d. 1860.
    Robert J. Barry, Clerk.”
    To this information the following plea was interposed:
    “And the said George W. Washburn, in his own proper person, cometh into Court here, and having heard the said information read, saith: That the Circuit Court for the county of Washtenaw aforesaid here ought not to take cognizance of the murder and manslaughter charged in said presentment above specified, because, protesting he is not guilty of the same, nevertheless, the said George W. Wash-burn saith, that this Court has not or cannot obtain jurisdiction of said crimes of murder and manslaughter, by presentment of the Prosecuting Attorney for the county of Washtenaw, and because there is not any thing set forth in said presentment in regard to said offenses of murder and manslaughter which gives jurisdiction to the Circuit Court for the county of Washtenaw, to hear, try ancl determine the same, and this he, the said George W. Washburn, is ready to verify. Wherefore he prays judgment, if the Circuit Court for the county of Washtenaw, now here, will take further cognizance of the presentment aforesaid, and that by the Court, now here, he may be dismissed and discharged.”
    To which the Prosecuting Attorney replied as follows :
    “And hereupon Sylvester Abel, Prosecuting Attorney of said county, who prosecutes for the said county in this behalf, says, that notwithstanding any thing by the said George W. Washburn above in pleading alleged, this Court ought not to be precluded from taking cognizance of the presentment aforesaid, because he says that the said presentment is sufficient, and because he says that the said Circuit Court has and can obtain jurisdiction of the crimes, murder and manslaughter, by the ¡presentment aforesaid, of the Prosecuting Attorney aforesaid, and that there is sufficient set forth in the presentment aforesaid to give the said Circuit Court jurisdiction of the said offenses, to hear, try and determine the same.
    And this he, the said Sylvester Abel, Prosecuting Attorney as aforesaid, is ready to verify; wherefore he prays judgment, and that the said George W. Washburn may answer to the said presentment.”
    The Circuit Court overruled this plea to the jurisdiction, and the defendant then pleaded not guilty.
    On the trial upon this issue, the prosecution called James Washburn, a child of defendant, seven years of age. The counsel for the defendant objected to his being sworn, on the ground that he was too young, and, from an examination of the witness by the Court, that he had been tampered with by his grandfather, James H. Young; but the Court overruled the objections, and the child was sworn.
    Previous to his being sworn, the Judge asked the child his age, which he gave at seven years. He. also asked him if he knew it was wrong to tell a lie, to which he answered, yes; that he would he punished if he did, but did 'not say in what way he would be punished if he told an untruth. During- his examination he stated to the Court that he had been told by his grandfather, who brought him here as a witness, that he must say his father murdered his mother. >

    After this examination, and being sworn, the child said he recollected' the day his mother died; he went home from school and looked all through the house, but could not find her, but looked at the foot of the stairs and found her dead.
    Considerable evidence was given to show difficulty between Washburn and his wife, resulting in a separation, and a bill filed by her for a divorce. The prosecution then offered in evidence what purported to be a warrant in a criminal ease, issued by D. B. Greene, a Justice of the Peace for Ypsilanti, against defendant, upon which it was alleged he had been arrested; to the introduction of which the defendant’s counsel objected, because it was irrelevant and immaterial, and because there was no return upon the warrant showing- that it had ever been served; but the Court overruled the objection. It was then proved that Greene was a justice of the peace at the time the warrant bore date, and that he signed the same as justice, but the contents of the warrant were not read to the jury.
    The prosecution then called D. A. Wise, a constable, by whom they offered to prove the service of the warrant, which was objected to on the ground it was irrelevant and immaterial, and that they could not prove by parol what was done by virtue of the warrant; which objections the Court overruled, and the witness testified as follows:
    • “I reside in Ypsilanti; am a constable, and was in March last; I served the warrant here produced on Wash-burn in March last, at Mooreville, and arrested him; told him contents of warrant; I don’t remember of reading the warrant to him.”
    On his cross-examination he said: — “I was employed by Joslin to go after Washburn; I never made any return on the warrant; I never took Washburn to the office of the justice who issued the warrant; I took him to Joslin’s office; I supposed the matter adjusted between Washburn and his wife; I let him go on my own responsibility; supposed the matter was settled; never arrested him again on the warrant.’’
    Other objections were taken to rulings on the admission of evidence in the course of the trial, but as they are not specially noticed in the opinion, it is not deemed important to state them here.
    The jury found defendant guilty of manslaughter.
    In this Court the case was twice argued — first, upon all the questions ajspearing in the record, and second, a re-argument was had by direction of the Court, upon the objections taken to the information. Only the second, argument is here given.

      O. Hawkins, for plaintiff in error:
    All penal statutes must be construed strictly. — 8 Pick. 515; 5 Wheat. 95. Penal statutes are never extended by construction, when the life, liberty or property of the citizen is concerned, nor by implication; and when there is doubt in regard to the construction to be given, it is always given in favor of the defendant. — 17 Mass. 362; 5 Pick. 420 ; 8 Barb. 603, 605 ; 2 Story, 369, 203; 4 Port. 410; 2 Mass. 127; Whart. Cr. Law, 364; 1 Pet. 462; 16 Me. 256.
    All penal statutes are to reach no further than their words; and no person can be made subject to them by implication. — 6 Vt. 215; 10 Vt. 590 ; 1 Bald. 101; 19 Conn. 292.
    No offense is to be brought by construction within fhe statute while it falls not within all its words. — 2 Haw. P. C. 188, § 16 ; 2 Gall. 18; 1 Chitty Cr. Law, 283 and note.

    Where the statute provides a mode of procedure, only that which.the statute prescribes can be followed. — 1 Bish. Cr. L. page 150, and note 1.
    And when there is a condition annexed in the statute, before the Court can take jurisdiction, it must affirmatively appear by express averment that the condition has been complied with. — 8 Port. 99, 104.
    It is not Decessary to set up the defense by way of plea. It is a jurisdictional fact, and good in arrest of judgment or on writ of error; and the Court is bound to notice-it. — 3 How. Miss. 34.
    2. That there is no oath as required by the statute, is plain. The oath required by the law referred to, is a substitute for the oath administered to the Grand Jury. The Court will look at the object of the law in requiring the oath, taking it in connection with the fact the law requires an examination before a magistrate for the offense charged, so that the person making the oath can be advised of the truth of the allegation.
    An oath is defined to be a solemn affirmation, made with an appeal to God for the truth of what is affirmed, &g. And a false oath is called perjury. Tested by this rule, could perjury be assigned upon the affirmation attached to this information? We submit it could not, for it would throw the burden on the prosecutor to prove that the affiant had no reason to believe, nor did not believe the infcrrmaiion to be Prue. The affirmation here would not bear the test in civil eases. It would not be good to a plea in abatement or a plea to the jurisdiction; and shall it be said that a man may be put on trial for his life on an affidavit which would be insufficient to recover a debt of five dollars, unless aided by a provision of the statute? — Say. Rep. 293; 2 Strange, 705; 5 Hill, 608.

      <7. Upson, Attorney General, for the People:
    An averment that' the defendant below had had an examination, or had waived such examination, was not necessary to give the Court jurisdiction.
    The Circuit Courts of this State are courts of general criminal jurisdiction, and in such courts it. is not necessary to recite in the indictment or information all the facts which give the Court jurisdiction. — 2 Chand. 199.

    By section 8 of article 6 of the Constitution, the Circuit Courts have original jurisdiction in all matters, civil and criminal, not excepted in the Constitution, and not prohibited by law. By § 3418, Comp. Laws, said- Circuit Courts are to have and exercise original and exclusive jurisdiction “of all prosecutions in the name of the People of this State, for crimes, misdemeanors, offenses and penalties, except in cases where exclusive or concurrent jurisdiction shall be given to or possessed by some other Court or tribunal, in virtue of some statutory provision, or of the principles and usages and law.” By sec. 1 of act No. 138, Laws 1859, page 391, Circuit Courts possess and may-exercise the same power and jurisdiction to hear, try and determine prosecutions upon informations for crimes, misdemeanors and offenses, to issue writs and process, and do all other acts therein, as they possess and may exercise in cases of Eke prosecutions upon indictments; and by same act all informations are required to be filed during term in the Court having jurisdiction of the offense specified therein, by the Prosecuting Attorney of the proper county as informant, be signed by him, and be verified by his oath or the oath of the complainant, or some other person.
    The presumption of law, then, is, when an information is filed in court by the Prosecuting Attorney of the county, that it is legally done; that the examination of the defendant has been had or waived, and consequently that the Court lias jurisdiction the same as when an indictment is presented by the grand jury in open court, and filed, the presumption is that it is legally presented, that the jurors were properly summoned, legally qualified and competent, and that twelve or more of them concurred in the finding; which facts, though essential to the lawful finding and presentment, are not necessary to be set forth in the indictment. — Thayer v. People, 2 Doug. Mich. 417 ; 6 Met. 224; 6 A. & E. 236, 247; 7 Ill. 540; 8 Ill. 644; 4 Dev. 305 ; Whar. Cr. L. §§228, 230.
    Whether an examination has or has not been had, is not a question of pleading in the first instance — a matter to be averred or alleged in the information in order to confer jurisdiction — but a question of fact to be raised by the defendant or not at his option, which fact is always within the knowledge of the defendant, and if he claims that this right or privilege has not been allowed to him, and will insist upon his right to it, he can and should do so when he is arraigned on the information; and if he neglect to do this, he waives the irregularity, if any originally existed, and cannot after verdict assign it as error.— 6 Met. 224; 2 Tred. 153; 14 Mr. 94; 1 Morris, 332 ; 2 Greene [Iowa), 270; 1 Yerg. 206 ; 10 Pick. 477; 2 Barb. 427; 6 N. Y. R. 50; 2 Comp. Laws, §§ 6043, 6054 ; 1 Bish. Cr. L. § 72a, 2d ed:, Whar. Cr. L. §§ 472, 489, 3223, 324; 12 Ark. 190, 623, 630.
    The fact that a prisoner has not been tried or examined before an examining court or magistrate, before the filing of an information against him, is a matter that may properly be pleaded in abatement or raised by motion to quash, in the nature of a plea in abatement, founded on affidavits, on an arraignment. — 1 Chit. Cr. L. 445, 109; 4 Me. 439; 36 Me. 128; 4 Denio, 133; 1 Mich. 234; 7 Gratt. 673.
    As a general proposition, whatever is pleadable in abatement is waived by the plea in bar of not guilty. Objections to the persons composing the grand jury, or to the manner in which it is impanneled, are of this class, and we may by analogy properly include objections for want of an examination. — 1 Bish. Cr. L. § 672a, 2d ed.; Whar. Cr. L. §§ 472, 537, 536; Bac. Ab. Juries, A; Cro. Car. 134, 147; 8 S. & M. 587 ; 12 S. & M. 68; 7 Yerg. 271 ; 10 Yerg. 527; 25 Miss. 203; 9 Ala. 10 ; 4 Blackf. 73 ; 5 Blackf. 75; 2 Ired. 101; 4 Dev. 305; 1 Met. 151; Arch. Cr. Pl. by Jervis, 77 ; Comp. Laws, §§ 6026, 6028, 6043, 6054.

    By Constitution, art. 6, §29, no person after acquittal upon the merits shall be tried for the same offense, and by §§5706, 5953, Comp. L., no person shall be held to answer on a second indictment for any offense of which he has been acquitted by the jury, upon the facts and merits on the former trial, &c.; yet who would insist that in such a case, the pleader had to anticipate it by averments in his information or indictment; and if in a case of former acquittal or conviction, on the trial of a subsequent indictment or information for the very same act or offense, the defendant failed to plead it or offer it in evidence, and should be convicted and sentenced, who would doubt the legality of the conviction and sentence, and how could the defendant allege it as error on the record ?
    If an examination of defendant before a magistrate, or a waiver, &c., of the same, had been alleged in the information, it clearly would not have been necessary to have proved it on the trial. It can not then be material here, nor be assigned as error. After verdict, by our statute, no information shall be held insufficient for want of the averment of any matter not necessary to be proved. — Comp. L. §§ 6054, 6043.
    The law of 1859 only requires a statement of the offense charged in the information with the same fullness and precision, in matters of substance, as is required in indictments in libe cases, and did not introduce any new rule of pleading, to show how the defendant became liable to be proceeded against by information. To require the Prosecuting Attorney to show by allegations in his information that he had by a preliminary examination become legally authorized to file an information against the defendant, would be analagous to requiring grand jurors to aver in each indictment they found and presented, the facts by which they became legally organized and authorized to find and present such indictment against such defendant.
    But the want of an averment in the information of a prior examination of the defendant, could not have tended to the prejudice of the defendant, and, by our statute, no information is to be held invalid by reason of any defect or imperfection in matter of form which shall not tend to the prejudice of the defendant.— Comp. L. § 6043; 2 Seld. 50.

    The same principles of reasoning above given, will ajjply to the objection now first raised in this case to the verification. If the verification were in fact defective or irregular in form, it was waived by the defendant by pleading to the information and going to trial without objecting to it, and the objection now comes too late.
    But the verification required by the statute can hardly be such as is necessary to make legal proof of all the facts averred in the information constituting the cifense, as that would be unnecessary, and ordinarily would be an impossibility.
    Seldom is an offense prosecuted where any one individual is personally cognizant of all the facts constituting it which are averred in the information.
    The oath of the Prosecuting Attorney or of the prosecuting witness, that he knows the contents of the information, and that he has good reason to believe and does believe the same to be true as therein set forth, as is the form substantially given in this case, should be considered a sufficient compliance with the statute, and it is in fact almost the ordinary form of verifying bills in chancery. To require, that after a preliminary examination has been had before a magistrate, and he has held the accused for trial, as is the ordinary mode of proceeding, any stronger mode of verification should be made than was made in this case, is also absurd, in requiring literally, that legal proof of the commission of the offense 'by the accused should be twice adduced in open court, before he can be put upon his trial. We are unable also to see how any rights of the defendant below could have been prejudiced by any form of verification; much less by the form used in this case. — 4 Dev. 305; 7 Gray, 332; Matter of Robinson's Estate, 6 Mich. 137; 10 Iowa, 149.
   Christiancy J.:

This was an information filed in the Circuit Court for the county of Washtenaw, containing several counts for murder and manslaughter. The defendant put in a plea to the jurisdiction of the Court, alleging that it “ has not or cannot obtain jurisdiction of said crimes, by presentation of the Prosecuting Attorney for the county; and because there is not any thing' set forth in said presentment in regard to said offenses which gives jurisdiction to the Circuit Court for the county of Washtenaw to hear, try and determine the same.” To this plea a replication was filed asserting the sufficiency of the presentment, and that said Court has and can obtain jurisdiction by the said presentment, &c.; and the plea was overruled by the Court; whereupon the defendant pleaded not guilty, was tried, and convicted of manslaughter.

The overruling- of the plea to the jurisdiction is assigned as error. The two grounds urged in support of this assignment are, first, that it does not appear upon the face of the information that the prisoner had had a preliminary examination for the offense, nor that he had waived it, nor that he was a fugitive from justice; and second, that the information is not verified as required by the statute.

As to the first point, the plea does not deny the fact of a previous examination, or assert that none had been had, or that it had not been waived. The question, therefore, depending upon matter apparent on the face of the information, rests upon the same grounds, and is to be decided in the same way, as if raised by demurrer.

The statute (Laws of 1859, p. 393 § 8) provides that “no information shall be filed against any person, for any offense, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination: provided, however, that informations may be filed without such examination against fugitives from justice.” It is not doubted that a defendant, unless a fugitive from justice (which is not pretended here) has a right to insist upon such examination before he can be put upon his trial, or called upon to answer the information. But the statute is express that he may waive this right; and we think he may waive it when called upon to plead to the information, as well as when brought before the magistrate for examination. It is not a matter which goes to the merits of the trial, but to the regularity of the previous proceedings. If he make no objection on the ground that such examination has not been had or waived, he must be understood to admit that it has been had, or that he has waived or now intends to waive it. If he intends to insist upon the want of the examination, we think he should, by plea in abatement, set up the fact that it has not been had, upon which the prosecuting attorney might take issue, or reply a waiver; or he must, upon a proper showing by affidavit, move to quash the information. The latter is the simpler course. The Circuit Court is a court of general criminal jurisdiction ; and the proceeding by information instead of indictment is not, under this statute, an exceptional or special one, but the general mode provided for the prosecution of offenses. We can therefore see no more 'satisfactory reason for requiring this preliminary examination or its waiver to be set out in the information, than for averring, in an indictment, that the grand jury was composed of at least sixteen competent grand jurors, or that the indictment was found by at least twelve {Comp.,I*. §§6014 and 6026), or any other fact essential to the constitution of a legal grand jury. We cannot think it necessary, on the trial for an offense, to prove the fact of such examination or waiver, more than on the trial under indictment to prove the preliminary matters referred to. The same rule should apply to both; and we think such is the effect of the language of the fourth section of the act of 1859. If not necessary to be proved, it need not be alleged. Comp. I. § 6054.

. It is further objected that the information is not verified as required by the statute. The statute requires it to be “verified by the oath of the prosecuting attorney, complainant, o;r some other person.” It is verified in this case by the affidavit of the prosecuting attorney, “that he knows the contents of the foregoing information, and that he has good reason to believe and does believe the same to be true as therein set forth.”

The statute must be construed with reference not only to its language, but its object as gathered from its various parts, and other statutes having reference to criminal prosecutions. As already noticed, it provides that no information shall be filed without a previous examination, unless waived. For the purpose of instituting such examination the statute {Comp. L. §§ 5978, '5979) requires that the complainant shall be examined on oath, and other witnesses produced by him; and “ if it shall appear that any criminal offense has been committed, the magistrate shall issue his warrant,” &c. Here, doubtless, it is evidence which is contemplated : and the facts and circumstances are to be stated by the complainant and his witnesses, as the object is to make it appear to the satisfaction of the magistrate that the offense has been committed by the defendant, to authorize the issuing of a warrant. When the defendant is brought before the magistrate on the warrant, the complainant and other witnesses on the part of the prosecution are to be examined on oath in the presence of the prisoner (Comp. Z. § 5989). “If it shall appear to the magistrate that an offense has been committed, and that there is probable cause to believe the prisoner guilty thereof,” he is to be required to recognize, &o. (Comp. Z. § 5994). Here again the object is evidence, and only facts and circumstances within the knowledge of the complainant and the witnesses are to be stated, as upon a trial. It would seem to be a useless ceremony, after these two examinations into the facts and circumstances, to require them to be again shown before the information can be filed by the prosecuting attorney: yet if any thing more is meant by the veri! cation of the information than an affidavit upon belief, it would be necessary, in most cases, 'to recall5 the witnesses, or most of them; as all the facts and circumstances necessary to establish the guilt of the prisoner are seldom known to a single witness.

But the statute do’es not here contemplate, as in the other cases referred to, an “examination,” but simply a “verification” of the information; and this is to be by the “ Prosecuting Attorney, complainant or some other person.” Why mention the Prosecuting Attorney at all if the facts are to be sworn to on personal knowledge? He is no more likely to have personal knowledge of such facts than any other person, though he is, from his official duties, more likely to be informed of the nature of the evidence. The statute seems to contemplate the verification by a single person only, and makes no provision for compelling the attendance of witnesses for such purpose, or for requiring them to testify.

The object of this verification is not, as in the “examinations ” alluded to, to satisfy the court that the defendant is guilty. It is not for the purposes of evidence, which is to be weighed and passed upon; but only, as we think, to secure good faith in the institution of the proceedings, and to guard against groundless and vindictive prosecutions: and this object is fully met by the previous examinations and a verification upon belief. We think, therefore, the plea to the jurisdiction was properly overruled.

Several exceptions were taken on the trial to the admission of testimony, and to the form of certain questions. But with the exception of those presently to be noticed, the ruling of the Court was so clearly correct as to require no particular notice here.

"The objection to the testimony of James Washburn, a child of seven years of age, cannot be sustained. He was competent to testify, but the question of his credibility was for the jury, and the defendant must have had the full benefit of his objection before the jury.

The prosecution offered in evidence what purported to be a warrant in a criminal case, issued by D. B. Greene, a justice of the peace, against the defendant, upon which it was alleged the defendant had been arrested; which the defendant objected to as irrelevant and immaterial. The objection was overruled, and defendant excepted. It was then proved that Greene was a justice, and his signature proved; but the contents of the warrant were not read, nor did the prosecution show for what offense it was issued, nor upon whose complaint. The prosecution offered to prove by Wise, the constable, that he served the warrant: this was objected to, the objection overruled, and exception taken. The constable then testified that he served the warrant, and told the defendant the contents, but did not remember reading it to him. Here the direct examination of the witness closed. From the mode in which the warrant was offered, and proof of service made, it is not easy to see for what legitimate purpose this evidence could have been introduced; and had there been no cross-examination, we should have been inclined to look upon it as calculated to prejudice the defendant before the jury, by an attempt to show that he had been charged with, and arrested for, another criminal offense, for which he was not on trial. Had it appeared that the warrant was fin-an offense charged to have been committed upon his wife, with whose murder he was now charged, or that it was issued upon her complaint, it would have been admissible, as tending to show hostile relations existing- between them? which might bear upon the question of motive, and tend to prove malice. But the prosecution had not shown this. The defendant, however, as we think, supplied this deficiency by drawing- out, on cross-examination of the constable, the following- testimony: “I was employed by Joslin to go after Washburn: I never made any return to the warrant: I never took Washburn to the office of the justice who issued the -warrant: I took him to Joslin’s office: I supposed the matter adjusted between Washburn and his wife: I let him go on his own responsibility: I supposed the matter was settled: never arrested him again on the warrant.” From this we think it apparent, inferentially, indeed, but satisfactorily, that the warrant had been issued on the charge of some offense upon the wife, which the constable understood to have been settled, and therefore let the prisoner go: and thus the testimony went to corroborate a considerable amount of other testimony showing difficulty or unpleasant relations between defendant and his wife previous to the commission of the offense.

We are therefore satisfied that there was no error in the judgment or proceedings of the Circuit Court, and the judgment must be affirmed.

Martin Ch. J. and Manning J. concurred.

Campbell J.:

I think there is no error in any of the rulings in this ease except as they relate to the jurisdictional objections to the information. I am of opinion that those objections are well taken. The {language of the statute, when viewed in the light of the previous law, seems to require a full verification, and a direct allegation of the preliminary conditions, in order to avoid results which must lead in many cases to serious evils which have always been considered important enough to be carefully guarded against.

The law has always been solicitous to preserve parties from the disgrace of an arraignment on a criminal charge, without at least prima facie proof beforehand of their guilt. Informations could, iudeed, be filed at common law by the crown authorities for misdemeanors. But such accusations never were deemed infamous, like charges of felony, and a party need not, usually, respond in person, and was not generally arrested in the first instance, if at all. Yet even with these palliations, the practice became so deservedly odious that our American constitutions have in several instances prohibited it entirely, while in England no one but the Attorney General — who rarely interferes except for what are strictly public grievances — can resort to this method of complaint without the previous leave of the Court obtained on a full showing upon affidavits served on the respondent. And the power-, thus restricted, has not been regarded with universal favor. It is still broad enough to lead to oppressioxx and injustice. Our constitutional provisions were all adopted long after the English statutes which restricted the practice.

The design of grand juries was to protect the citizen from unfounded charges by preventing his being put to answer any accusation which had not previously been proven to the satisfaction of an impartial tribunal by evidence which, if not rebutted or explained, would justify a conviction. This protection has been deemed important enough to be secured by the most solemn sanction of bills of rights and fundamental charters. The abolition of grand juries has never been ui’ged on the ground that this caution was unnecessary. The objections to those tribunals have generally, if not universally, been founded upon the idea that they did not, in practice, afford the protection against unfounded charges which justice and policy require. The history of the movement in this State, and the language of the statute now under consideration, can hardly be reconciled with a design to take away any of the ancient safeguards without supplying an equivalent.

The only effect of the statute on grand juries is, to make their summoning depend upon the discretion of the Court, instead of requiring them to be called at every session. But in authorizing informations to be used in lieu of indictments in all classes of offenses, certain conditions are imposed, which must be complied with beforehand, and which are in their nature jurisdictional, and calculated to insure the safeguards against unjust accusations which the old system was intended to maintain. The statute declares that “No information shall be filed against any person, for any offense, until such person shall have had a preliminary examination therefor, as provided by law, before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination.” An exception is made against fugitives from justice, who may be informed against without examination, and are to be demanded by the Executive upon information, as formerly upon indictment.

It is also provided that upon filing an information the same process and other proceedings shall be resorted to as in cases of indictment. And, if an information can be filed on belief only, and need not show a preliminary examination, nor the reasons why it has not been had, a party has no security whatever against being subjected to arrest, imprisonment, and the disgrace of a public arraignment and trial, when there is no legal evidence whatever of his guilt, or of its probability. The presumption that a prosecutor will not abuse his power has never been considered a sufficient protection to private character and liberty. And in accusations of murder, where an indicted person is not bailable, the consequences are monstrous. If this interpretation is correct, the law would conflict directly with the constitutional provision which prohibits arrests without warrant founded on oath — which has never been deemed to be satisfied by a mere heresay averment of belief But the general rules applicable as well to indictments as to informations are sufficient to dispose of the questions before us.

It is a well settled rule in all criminal cases, that every proceeding, in order to be valid, must appear to be within the jurisdiction. No indictment is valid unless the records of the Court show it to have been found by a lawful jury. If removed to another court than that where it was found, the caption must show all of the record essentials, and if the record does not contain enough to show that the indictment was found lawfully, no conviction can be maintained upon it. These jurisdictional requisites do not appear in the body of the indictment, because a grand jury could not by its finding either affirm or deny effectually that which is evidenced by the record itself, and which must therefore stand by the record. And in like manner, where leave of the Court is necessary before an information is filed, the record itself shows whether leave was or was not granted, and it need not appear in the pleading.

But whenever the jurisdictional fact is dne which does not otherwise appear of record, and the power of the Court to proceed depends upon conditions and facts not previously established before it, I have found no rule exempting the prosecutor, or accusing body, from the necessity of alleging them in the instrument of accusation, or which compels a defendant to make Ms objection in the outset. On the contrary, there are authorities which can not be reconciled with any such rule, and others from which its illegality may be fairly implied.

Thus, at common law offenders must generally be indicted in the county where the offense is alleged to have been committed. But under various statutes courts sitting in other counties where the offenders were apprehended or were in custody might have indictments found and tried before them. The cases arising under these statutes exemplify the rule requiring what is not of record to be averred, and dispensing with allegations of what is already of record. In Berwick's Case, Foster C. L. 12, it being objected to an indictment for treason that it did not aver the defendant to be in custody in the county where it was found, while the offense was laid to have been committed in another county, the Attorney General replied that it aj>peared on the record as it then stood, that he had been so in custody; and the indictment was maintained. And in Regina v. Whiley, 1 C. & K. 150, a similar objection was overruled on the ground that the caption of the indictment would show the custody. But in Rex v. Fraser, Moody C. C. 407, where a party was indicted in a county where he was apprehended, although evidence was given on the trial that he was apprehended there, yet the Court held the indictment fatally defective because it contained no such allegation. In Regina v. Feargus O'Connor, 5 Q. B. 34; and in Regina v. Stowed, 5 Q. B. 44, similar rulings were made in regard to allegations of venue in indictments preferred in the Central Criminal Court; a marginal venue not being held sufficient.

In Regina v. Burnby, 5 Q. B. 348, where a statute prohibited any indictment to recover certain penalties without leave of the Commissioners of Customs, objection was taken to an indictment for perjury that it alleged no such leave granted, and the Judges, overruling it on the ground that perjury was not within the statute, intimated that if it had been the objection would have been well taken.

In New Hampshire the law has been settled, clearly and directly, that these jurisdictional requisites must be averred and proved. A statute of that state giving justices of the peace power to try complaints for assault, authorizes them, when the aggravation of the case warrants it, to bind the respondent over for indictment. In the case of The State v. Hilton, 32 N. H. 285, an indictment for assault was found which contained no averment of a previous complaint and examination. It was admitted on the trial that there had been a regular course of preliminary proceedings. But the court held the conviction bad for want of such an averment in the indictment. It was held that every jurisdictional matter must be averred and proved; and that such w¿as the general rule. This case has been 'followed up by other decisions illustrating it, among which may be mentioned, State v. Stevens, 36 N. H. 59, and State v. Bean, 36 N. H. 122. They show that the averments, must be full and accurate, and that they must be clearly proved.

Under our statutes none of the preliminary requisites of an information are entered of record, or in any way brought to the notice of the court, as an indictment and the previous impanneling of the grand jury must be. The journals make no allusion to them. If a defendant is bound over, the justice must return the examination to the clerk; but this is not done in open court, nor recorded. If a party waives examination no return is required. If charged as a fugitive no proceeding before a justice is necessary at all. And if the information may be drawn and sworn to as in the case before us, a party may be arrested and arraigned without any previous ceremony, or any reason for dispensing with it, in clear violation of the design of the statute. But as the Court could not proceed a step without the statute, I think it must adhere to the statutory conditions, and that the adherence should appear. As the statute says, “wo information shall be filed ” without an examination or waiver, I do not see how this waiver can be subsequent to the filing, nor how the validity of an information can be made to depend upon matter ex post facto. The information must be good or bad when filed; and jurisdiction cannot be made to depend on the chances of a respondent’s acuteness in pleading.

The statute requires that “All informations shall be verified by the oath of the Prosecuting Attorney, complainant, or some other person”: p. 392, Laws 1859. If the allegations of jurisdictional facts are required, then this verification will supply in some degree to the Court the proof that the statute has been complied with, and that the defendant is not accused irregularly or without canse; and the danger •of vexatious arrests will be very much lessened.

The question of the manner of veiification becomes important in this view, as it is also in regard to the charge itself. And I have not been able to satisfy myself that a mere belief of the Prosecuting Attorney is enough to satisfy the statute. He is not bound to file an information unless he has good grounds for it, and if belief alone were sufficient there could be no occasion for providing that it may be verified by any one else. But the chief reason for any verification is undoubtedly to be found in the rule already referred to, which requires every criminal charge to be sustained by some responsible showing by legal evidence. No one could at common law be compelled to respond to an accusation of felony, unless it had been -previously established by proof to the satisfaction of a jury — and this might be by the verdict of a Coroner’s jury, or of a petit jury in a civil case, or by the indictment of a grand jury:— 2 Hale P. C. 61, 150, 151; Rex v. Maynard, Russ. & Ry. 240; 1 Chit. Cr. L. 158, 163-4-5. And this action was not surmise, nor based on hearsay; but was founded on the same quality of evidence which is used in all courts of justice: — 1 Chit. Cr. L. 166, 318, 319; 4 Bl. Com. 301-2, and Chitty's notes. 'The same proof unexplained would probably convict him on the trial.

Even in regard to misdemeanors, where an information might be filed under the English practice, no rule is granted except upon such direct evidence as would, uncontradicted, make out the offense beyond a doubt. The rule is rigid, and requires the best evidence in kind and degree. — Arch. Cr. Pl. 76; Rex v. Willett, 6 T. R. 294; Rex v. Williamson, 3 B. & Ald. 582; Rex v. Bull, 1 Wils. 93; Rex v. Hilbers, 2 Chit. R. 163; Regina v. Baldwin, 8 A. & E. 168; Ex parte Williams, cited 1 Harr. Dig. 2268; 1 Chit. Cr. L. 856, 857.

If a prosecutor does not comply with these requirements, he is left to his remedy by indictment.

When we consider the reasons of the old practice, and the great jealousy with which private reputation and liberty have been guarded by the same or by analogous means, it is impossible not to feel that all of these guards have been swept away unless the verification required by the statute is to be of the same nature as that of indictments and informations in England — that is to say, by the oath of some one .or more persons who can of their own knowledge make proof of such facts as will, uncontradicted, show every essential element of the case, and bring it within the jurisdiction of the Court. Any thing short of this is in fact and in law no verification whatever, and perjury could’ not be assigned upon it. In further support of this view I refer to 4 Com. Dig. 636, note b (Am. Ed.); Rex v. Justices of Somersetshire, 1 Man. & R. 272; Rex v. Dickinson, R. & Ry. C. C. 150; United States v. Coolidge, 2 Gall. 364; 7 B & C. 514. These authorities are valuable, as showing how carefully private liberty is guarded against all charges not founded on the best legal evidence.

If it is urged that a previous examination would make a new verification unnecessary, the same suggestion would apply to an indictment. An indictment for felony without a previous complaint and examination is very uncommon. An examining magistrate may very properly commit on evidence of suspicion which would not justify a grand jury in finding ah indictment. The rule of law requiring evidence to found a charge upon which shall make out a prima facie case, has always been independent of that which affects preliminary examinations, A magistrate is not bound by it, and a party bound over or committed cannot be assumed to have gpything more than reasonable grounds of suspicion made out against him.

This statute was made also with a direct view to the reclaiming of fugitives from justice; and an information verified on nothing but the Prosecuting Attorney’s belief, and silent as to the absconding of the accused, would not be a sufficient foundation for such a demand under the act of Congress, and the decisions upon it.

The law does not require the information to be verified, by one person alone, and does not require every fact to be sworn to by the same person. Under a practice which allows several counts, charging the offense in various ways, the verification can hardly be made consistently except by following the course of civil proceedings where, if the pleading is not specific enough, the facts and circumstances appear in affidavits appended. A verification, whether positive or on belief, which charges a person with different offenses —as murder and manslaughter — in all the phases of a technical information, is a very idle ceremony, and would not tend, if permitted, to encourage respect for the obligations of an oath.

I am of opinion that the information is bad in not showing the pre-requisites complied with, and in not being positively verified.

Judgment affirmed.


author: Christiancy J.: Campbell J.

text:
    William Hicks v. The People.
    The preceding case of Washburn v. The People, affirmed.
    An information for incest, which charges the crime to have been.committed with one H.} “ she, the said H., being then and there the daughter ” of the accused, is sufficient, without also averring, in the words of the statute, that tlie parties were “within the degrees of consanguinity within which mamage® ure prohibited, or declared by law to be incestuous and void.”

      Heard May 3d.

      Decided July 18th.
    Error to Washtenaw Circuit.

      O. ITawMns-, for plaintiff in error.

      G. JJpson, Attorney General, for the People.
   Christiancy J.:

The same objections are urged to the information and' its verification in this case as in the case of Washburn v. The People argued and submitted with this. The opinion in that case- decides the present,, so far as these questions are involved.

The information is for incest, and charges that the defendant “did commit the crime of fornication with one Harriet A. Hicks, by having carnal knowledge- of the body of her, the said Harriet A. Hicks, she the said Harriet A. Hicks being then and there the daughter of the said William Hicks.”

It is assigned as error that the information does not allege, in the language of the statute creating the offense {Comp. L. §5870), that the defendant and the said Harriet A. Hicks were “ within the degrees of consanguinity within which marriages are prohibited, or declared by law to be incestuous and void.” This was clearly unnecessary. It being charged that the offense was committed with a daughter of the defendant, it is but a conclusion of law that the parties were within the prohibited degrees of relationship. By reference to Compiled Laws §.3206, it will be seen that no man is allowed to marry his daughter; and by the next section, that no woman is permitted to marry her father. This is a public law of which courts are bound to take notice. The statute creating the offense here charged uses-the words “ within the degrees of consanguinity within which marriages are prohibited,” &c., as descriptive of the class of persons to whom it applies,-, and- merely for the sake of brevity, to avoid the necessity of' enumerating specifically all the different degrees of relationship to- which the provision is intended to apply.

There is no error in the judgment or proceedings of the Circuit Court, and the judgment must be affirmed.

Martin Ch. J. and Mannn<j J. concurred.

Campbell J.

dissented on the same grounds as in the case of Washburn v. The People, but concurred upon the other point.


author: Campbell J.:

text:
    Charles A. Lull v. Daniel Curry and others.
    Where a highway is laid out through the lands of an individual, and his damages are appraised, and an order «on the township treasurer is tendered for the amount, the order must designate the payee, so as to show on its face the person to whom it is payable.
    An order payable “to tbe owner or occupant, or to the person entitled thereto, for the land so taken,” is not a compliance with the statute, and its tender does not authorize the highway commissioners to take possession of the land

      Heard July 19th.

      Decided July 21st.
    Case made after judgment from Saginaw Circuit.

      Sutherland db Miller, for defendants.

      Moore & Gaylord, for plaintiff.
   Campbell J.:

Plaintiff having sued defendants for trespass, they justified on the ground that the place where it was committed was a highway which they were opening according to law. The Judge found the facts, from which it appeared that regular proceedings were had to lay out the road and assess the damages on the jfiaintiff’s land, but that no payment of the amount was made to him, and no tender except of an order on the township treasurer payable “ to the owner or occupant, or to the person entitled thereto, for the land so taken;" which be declined to receive.

The statute allows the road to be opened when the damages have been paid or tendered, or “ an order on the treasivrer of the proper township for the amount of such damages shall have been executed and delivered, or tendered to such owner or occupant by said commissioners. — Laws 1858, p. 37, § 25.

Such an order as was actually tendered is in no sense a compliance with the law. It designates no payee, and leaves the holder with no means of assuring the treasurer of his rights under it. It is payable to no particular person, and' gives no means of reasonably ascertaining the payee. An order under the statute must show on its face to whom it belongs, or is payable.

As under this finding no judgment could possibly be given for the defendants under any rule which might be adopted upon the other points mooted, we do not now feel authorized to consider them.

The judgment is affirmed, with costs.

The other Justices concurred.

      The following is a copy of tho order, omitting the description of the road :
      ,l Bridgeport, August; 18th, 1860,
      To the Treasurer o? the township of BridgeportWhereas a public highway has been laid out by the proper officers, through lands now occupied by Charles- A. Lull; said road described as follows” (giving description according to survey): “The amount of damages awarded to the person entitled thereto, $25 per acre for whatever 1 md was taken at that rate, which for the land so taken amounts to $48.62%. Pay to the owner or occupant, or to the person entitled thereto, for the land so taken, the sum above named, out of any funds raised by the township for the laying out and establishing of roads in said township.

        Freeman Little, V Highway Commissioners Haniel Qurry, V for the Jesse Irish, ) township of Bridgeport.” /Egbert Bldred, Town Clerk,


author: The Court

text:
    Robert Blackwood v. Peter P. Van Vleet.
    A decretal order allowing a general demurrer to a bill in chancery, but not in terms dismissing the bill or awarding costs, is not a final decree from which an appeal can be taken to this Court.

      Heard and decided July 18th.
    Appeal in Chancery from Lenawee Circuit.
    The bill was filed to cancel certain tax titles, held by defendant, of lands which he occupied, but which were claimed by complainant; and also for an injunction to restrain waste upon the lands. Defendant demurred generally, for want of equity. On the hearing in the Court below, the following decretal order was entered:
    “The demurrer in this cause having been duly brought on for argument, at the last term of this Court,' and the respective solicitors having been heard, after due consideration thereupon, it is now ordered and decreed, and this Court doth order and decree, that the demurrer be and the same is hereby sustained.”
    Treating this as a final decree, the complainant appealed.

      A. L. Millerd, for complainant,
    to the point that on the allowance of a general demurrer the cause was out of court, and no further steps could be taken therein, cited Story Eq. Pl. §459; 1 Barb. Ch. Pr. 211; Dan. Ch. Pr, 668, et seq.

      T. M. Cooley, contra,
    cited Note to Story Eq. Pl. §459, last ed.; Dan. Ch. Pr. 670; 13 Ill. 31; Chancery Rule 22.
   The Court

held this not to be a final decree. It does not necessarily dispose of the case in the Court below. It does not in terms dismiss the bill, or determine, if it is dismissed, whether it shall be without prejudice or not. It says nothing on the subject of costs. These subjects would still be under the control of the Court of Chancery, notwithstanding this order. If the complainant in this case had waited until the forty days allowed by statute for an appeal had expired, expecting defendant to apply for a decree formally dismissing the bill and awarding costs, it .could hardly be held that he had thereby lost his right to appeal. If the defendant fails to perfect the decree, and the complainant does not ask leave to amend, but desires to appeal, he can himself cause the decree to be perfected for that purpose.

Case dismissed, for want of jurisdiction.


author: Chkistiancv J. :

text:
    The People, on the relation of the Attorney General, v. The Grand Blanc and Holly Plank Road Company.
    Tlie clause in the fiftieth section of the General Plank Road Act of 1851, which provides that any subsequent alteration or amendment of the act shall not operate as an alteration or amendment of the corporate rights of companies formed under it, unless specially named in the amendatory act, was inserted solely for the protection of the companies formed under the act, and does not prevent the Legislature, by general amendment, from removing any restrictions, or releasing or diminishing any obligation or burden imposed upon such companies by the general act.
    And consequently companies formed under said act may, as to the road subsequently constructed, claim the benefit of the act of 1859 (Laws of 1859, p. 155), which permits them to adopt a grade of not exceeding one foot in ten, instead of one foot in twenty as under the general act.

      Submitted on briefs July 9th.

      Decided July 21st.

    Information in the nature of a quo warranto, to forfeit the rights and franchises of the defendants. The plea of the defendants set up their incorporation under the General Plank Road Act of 1851, and averred a compliance with all the provisions and requirements of law to constitute them a body politic and corporate. To this plea three replications were filed, only one of which is important to be noticed here, and that and the subsequent pleadings are sufficiently stated in the opinion.

      A. Bussell, for the People.

      Backus <& Harbaugh, for the defendants.
   Chkistiancv J. :

The first replication alleges, as a ground of forfeiture, that the road was not constructed of such grade as not to exceed an ascent or descent (upon any part thereof) of more than one foot in twenty feet, as required by the twenty-eighth section of the General Plank Road Law of 1851,— Comp. L. §1908.

To this the defendants rejoin, admitting the construction upon a grade of more than one foot in twenty, but not exceeding one foot in ten; and justify under the amendment of the twenty-eighth section, approved February '¡rth, 1859 {Laws 1859, p. 155), which they allege took effect before the construction of their road, and which changes the required grade from one foot in twenty feet to one foot in ten.

To this rejoinder a demurrer is interposed. The only ground upon which the demurrer is sought to be maintained, is that this company is not “especially .named” in the amendatory act of 1859; and it is insisted that by the fiftieth section of the general act of 1851 {Comp. L. § 1930), no company can claim any benefit from an' amendment of this general law unless especially named in the amendatory act. The fiftieth section is in the following words: “The Legislature- may at any time alter, amend or repeal this act; but such alteration or amendment shall not operate as an alteration or amendment of the corporate rights of companies formed under it, unless especially named in the act so altering or amending this act; and the Legislature may amend or repeal any corporation formed or created under this act; but such alteration, amendment, annulling. or repealing shall not, nor shall the dissolution of any such company, take away or impair any remedy given for or against any such corporation, its stockholders or officers, for any liability which shall have been previously incurred.”

The general purpose of this section was to reserve to the Legislature a power of amendment and repeal, by which the rights of companies formed under it might be affected or impaired without the consent of such companies; and the clause relied upon in support of the demurrer is but a restriction or modification of that right reserved by the previous general words; and this restriction or modification was inserted solely for the protection of such companies. It is, in substance and effect, but a stipulation that the cor-porate rights of such companies as may have been forméd under this general act shall not be affected to them prejudice, or against their consent, by any alteration of the general act not having express reference to the particular companies intended to be thus affected. In other words, that, to impair any right of, or to impose any new obligations upon, such companies by alteration or amendment, the legislative will must be exercised, not generally, but with special and express reference to each particular company intended to be thus affected, that each company may, in such a contingency, stand upon its own merits.

When considered in connection with the whole act, we see nothing in this section which can be properly construed as intended to prevent the Legislature, by general amendment, from removing any restrictions, or releasing or diminishing any obligation or burden imposed upon such companies by the general act.

The amendatory act of 1.859 was intended to relieve plank road companies from the more onerous obligation of constructing their roads with a grade of not more than one foot in twenty feet, and to allow them, if they so elect, to adopt a grade not exceeding one foot in ten, which requires less labor and expense. We can therefore have no doubt of the right of any company to claim the benefit of this act whose road was constructed after the act took effect. The case does not call for an opinion upon roads previously constructed.

The demurrer must be overruled, with leave to surrejoin. '

The other Justices concurred.


author: Campbell J. :

text:
    George W. Lee v. Robert G. Mason.
    On the foreclosure of a mortgage by advertisement and sale undent* the statute, where the premises consist of several parcels not adjoining each other, the sale of the parcels must be separate, and the deed given in pursuance of the sale must show the price at whioh each parcel was sold.
    Where the deed given on such a sale was for several parcels, for one sum named as the purchase price of all, the foreclosure was held invalid.

      Heard July 18th.

      Decided July 21st.
    On case made from Clinton Circuit.
    Lee commenced proceedings before tbe Circuit Court Commissioner for Clinton county, to recover possession of certain premises held by Mason, and which Lee claimed under the foreclosure by Bacon, his grantor, of a mortgage given by one Vansice, from- whom Mason derived title. The mortgage was of three several parcels of land, two of which were adjoining, and the other a mile or more distant. After trial before the Commissioner, the case was appealed to the Circuit Court, and the cause there tried without a jury. On this trial, it was admitted that Mason had given ■a proper notice for the purpose of foreclosing the mortgage by advertisement under the statute; that a sale had taken place thereon, and that Bacon bid in the land, and no redemption had been made, though more than a year had expired since the sale. A deed from .the sheriff to Bacon was then given in evidence. It recited that the sheriff, on September 24th, 1858, sold at public vendue, to Bacon, for $129.02, the three parcels of land described in the mortgage, in pursuance of the notice of sale which had been given. There was also given in evidence an affidavit of the sheriff, made at the date of the deed, and filed in the office of the Register of Deeds, stating that all the land described in the mortgage was sold to Bacon, at the time and for the sum specified in the deed. Upon this evidence, the Circuit Judge gave judgment for the plaintiff.'

      S. M. Perrin and T. M. Cooley, for defendant.

      M. Strickland, for plaintiff.
   Campbell J. :

Mason' was proceeded against as holding over after foreclosure of a mortgage made by his grantor, the equity of redemption being alleged to have expired. The premises consisted of parcels, some of which were not adjoining. The sheriff’s deed on foreclosure conveys all of these parcels for one sum named as the purchase price, to Lee’s grantor, who was owner of the mortgage; and nothing appears by it to show that the land was sold in parcels, or, if so, for what sum each parcel sold. The statute provides that “If the mortgaged premises consist of distinct farms, tracts or lots, they shall be sold separately, and no more farms, tracts or lots shall be .sold than shall be necessary to satisfy the amount due on such mortgage,’’ &a — Comp. L. §5183. By §5187 a right is given to redeem any parcel separately sold.

By the Revised Statutes a separate deed seems to,have been contemplated of each parcel sold; and the price of the parcel was the consideration of the deed when so made'. — R. S. of 1846, Ch.. 130, §9. The law as it now stands provides that one deed of the premises bid off by him may be made to each purchaser, specifying as the consideration , “ the precise amount for which such parcel was sold;” and the person selling is required -to endorse thereon the time when such deed will become operative in case the premises are not redeemed according to law, and forthwith deposit it with the County Register, to whom the redemption money may be paid for any parcel separately sold. — §§5185, 5187. As the deed is the only instrument absolutely required to be left with the Register, it is manifest that it was not the effect of the amendment to do away with the 'necessity of showing by it the price bid for each parcel; for otherwise there would be no reliable source of information on that head. Such a matter could not be left to be ascertained by outside inquiry. The Register's action is based upon the deed in Ms official eustody.

As this case does not show a compliance with the statute, the foreclosure can not be regarded as complete. The statutory proceeding being ex parte, must conform in all matters to the conditions expressed by the Legislature. We can not regard the provision requiring separate sales of separate parcels as merely directory. It is essential to secure the interests of the various parties from loss or prejudice. The pei-son claiming under a foreclosure of a mortgage, where the parcels are separated, as some of them are here, must fail unless it is complied with. The judgment below must be reversed, and a new judgment must be entered in this Court, that Mason is not guilty of unlawfully holding over the premises demanded, and that he recover against Lee his costs in this Court, the Circuit Court, and before the Commissioner.

The other Justices concurred.