author: Patchin J—

text:
    Dwight May, Attorney General, ex rel. Fisher et al. vs. The City of Detroit et al.

    'Vhere a city charter provides, that certain public works shall be let to the lowest responsibl e bidder, with sureties, and that the same shall be advertised, Held, That the following provision in the advertisement for the work, by the Controller, viz: “Builders arc required to file a satisfactory bond with the Controller before the proposal* are opened conditioned that should they be found to be the lowest bidders they will enter into a contract, with good and sufficient sureties to perform the work,” was warranted by the charter, and that a party bidding, though the lowest bidder, has no right to insist upon the acceptance of his hid without first filing a bidders’ bond,

      Wayne Circuit,

      October, 1871.

      Levi T. Griffin, Solicitor for Complainant; G. V. N. Lothrop,'of Counsel.

      J. P‘ Whitfman, Solicitor for Defendants; Theodore Romeyn and E. W. Meddaugh, of Counsel.
   By the Court,

Patchin J—

This is a motion to dissolve a temporary injunction granted upon a bill in chancery filed dor the purpose of obtaining a permanent injunction against the city of Detroit, restraining them Irom paying for certain paving upon Woodward avenue, in said city, that had already been contracted for with the defendants, Walton & Co., for the reason that the contract- was illegal and void, not having been made in accordance with the provisions of the .charter.

It is provided in the charter that all work of this kind shall be let to the lowest responsible bidder, with sureties, and that proposals for the same shall be advertised. The lorm of the advertisement, as well as the details of letting to the lowest responsible bidder, seemB to have beén left somewhat to the discretion of the parties who are required by the charter to perform that duty.' The time, place and manner of presenting the proposals must be thus determined.

In the advertisement for proposals in the -case at bar is the following provision : “ Builders are required to file á satisfactory bond with the Controller before the proposals are opened, conditioned that should they be found to be the lowest bidders they will enter into a contract, with good and sufficient sureties to perform the work.”

The Detroit Ironizing and Paving Company filed with the Controller sealed proposals, .which are conceded to be the next lower proposals to those of Walton & Co., to whom the contract was let, but without complying with the above provisions by what is termed a bidder’s bond, claiming that the Controller had no right to .require them to do so. It is claimed on the part of the defendants that they neglected to thus comply with the conditions of the advertisement because the particular -kind of pavement for which the b;d was put in was secured by letters patent to other parties than them • selves, to wit, the defendants, Waitón & Co. It was conceded that in’ other cases, when the said Detroit Ironizing and Paving Com pany were the owners of the patent, they filed the necessary bidders’ bond, and when the lowest bidders they'were awarded the Con' tract by the Common-Council.

It therefore resolves itself, into a question of right on the part of the Controller to require the bonds. It is conceded that up to 1809 these bidding'bonds had not been required. In the .proceedinga of the Common Council of January 8th, 18G9, will bo found the following:

“ To the Honorable the Common Council:
Gentlemen — Mr. James French, who is the lowest bidder for paving, etc., of Farmer and Bates streets, declines to enter into a contract and perform the work. Messrs. Batchelder & Cook, who are the next lowest bidders for-this paving, also»dccliue to .contract according to their proposals. Messrs. 11. B. Johnson & Co., who are the next bidders for the paving, etc., of the above named streets, have agreed to perform the work at their proposal.
(Signed) B. G. STIMSON, Controller.”

It will be seen from the above that instead of the lowest the highest bidder received the contraet. It is entirely clear that up to this time those having the matter in charge had not so executed this provision of the charter, in this regard, as to secure to the city the very object of the law, namely that the contracts should be let to the lowest bidder, and that something more was necessary in order to properly carry out the very wholesome provisions of the charter in this respect. The additional requirement was therefore.made a bidders’ bond should be filed.” “ The lowest responsible- bidder” is the expression in the charter, and the Controller cannot under it contract with any other.

I cannot believe it to be the duty of the Controller .to go out .upon the street and make'- inquiry as to the responsibility of the holders or trust to his own previously, acquired knowledge in regard to it. The charter does not provide the mode in which this information shall be obtained, and the Controller is therefore.left to' adopt such reasonable and proper regulations as will best1' carry out the' objects of the law and secure .the work done by the' loVest responsible bidder, as contemplated by the charter. - This, it ’ seems to mo, the Controller has most effectually done by requiring bidders bonds to be filed with the proposals, that he may in his own office (where it is presumed his duties are to. be performed) determine all the matters required of him by the l.aw. And the public. record thus made will for all time to come give notice to the world that no man’s bid was ever acted upon, much less accepted, which did nof' possess all the qualifications required by the law.


source: Caselaw Access Project

author: Blackman, J.

license: Public Domain

text:
    Yore, Plaintiff in Error, vs. The People, Defendant in Error.

    A person arrested without warrant bytho Marshal of the village'of Benton .Harbor muatb# taken before a Justice of the Peace of Benton township,, and this must appear on tho face of tho proceedings.
    A Justice cannot hear, try and determino a criminal charge upon a complaint alone.
    A defondant in a criminal c{ts$ cannot challenge peremptorily jurors'in a Justice’s Court.

      JBtrrien Circuity

    October, 1871.'

      Certiorari to Justice’s .Court.

      C. B. Potter, for Plaintiff.

      G. S. Glapp, for Defendant.
   By the Court,

Blackman, J.

Burr, as MarshaFof the village . of Benton Harbor, made on oath a complaint to Justice Hull, which was reduced to writing and subscribed'by him, charging Yore with sundry violations of the ordinances of the village, in being disorderly.

The papers nowhere show of what township said Hull was a Justice. .No warrant was, issued.

After making the complaint Burr introduced the defendant Yore to the Justice, who distinctly read the complaint to Yore and required him to plead thereto. Yore plead not guilty and demanded a jury trial.

On the coming in of the six jurors summoned, Yore’s attorney challenged two of them peremptorily. The Justice overruled the challenges.

By Act No. 428, iSaws of 1869, Art. 8, § 2, Justices of the Peace of the township of Benton are authorized to hear, try and determine cases of disorderly persons arrested without warrant, and before complaint, and kept in custody.

The Justice undertook to proceed under Chap. 118, while the Section 2, of Art. 8, under which Yore was arrested, plainly contemplates proceedings under Chap. 112. By both chapters there could be no trial without a warrant, for it is on its return the Justice is authorized to hear, try and determine the cánse. § § 1551, 3926. •

, It is the chargein the warrant that is distinctly read to the defendant, and to which he is required to plead. § 3928. The sole use of the complaint is to authorize the issue of the- warrant, while the warrant serves a two-fold purpose, viz : to cause arrest and to furnish pleadings. Pratt vs. Bogardus, 49 Bar., 93; 10 Mich., 185; 9 Id., 193.

As the trial of a disorderly person arrested without warrant must be by a particular magistrate, this must appear on the face of the proceedings.

The same and style of the Justice must be . set forth in the complaint. Tiff. Cr. L., (Howell) p. 134.

The peremptory challenge is not a common law right of a person charged with a misdemeanor. 4 Bl. Com., 353. It is given by § § 4400, 6070, only to persons indicted.

§ 3934, of Ch. 118 provides for challenges upon legal objections and no other. Expressio ttnius cst cxchisio altering. Tiff. Cr. L., 154.


author: Brown, J.

text:
    David B. Cheeseman, Plaintiff in Error, vs. The People, Defendants in Error.

    C was convicted, before a Justice of the Peace, of assault and b ittery, and sentenced to pay a fine of five dollars and costs within five days, and in default thereof to he imprisoned ten days in the common jail, Held, That the judgment should be reversed, the sentence being uncertain and conditional.

      Van Burén Circuit,

      September, 1871.

      Certiorari to Justice’s Court.
    7 he plaintiff in error was tried by a jury and convicted before a Justice of the Peace, of assault and battery, and judgment was rendered against him that he pay a fine of five dollars anil costs'of suit, taxed at $24 83, and in default in the payment of said fine and costs within five days, that he be confined in the county jail for the term of ten days
   By the Court,

Brown, J.

Of the several grounds of error alleged in this case, I deem it necessary to consider none but the first, as that is decisive. One of the elements of a sentence is that it be final and conclusive. The judgment pronounced by the Court is the sentence or conclusion of the law following upon ascertained premises, and must therefore he unconditional In this case the sentence is uncertain, and the respondent’s imprisonment is to depend upon a condition precedent — the payment or non-payment of the fine and costs within a certain number of days. To determine whether the fine and costs were paid within the time limited, Would require another adjudication ; a second judgment.

A sentence must be something more than & judgment nisi.

Had the judgment of-the Justice been that the respondent pay a fine of five dollars with costs taxed at $24 83, and that he he committed to the county jail until the same should be paid, not exceeding ten days, I have no doubt but that such a judgment would be valid — at least it would not be invalid on the score of uncertainty. The sentence would be certain and definite; the imprisonment in such a case is designed to securthe payment of the fine and costs and not to be in lieu thereof. See State vs. Bennett, 4 Dev. & Batt., 43; Matter of Sweetman; 1 Cow., 144.

The judgment of the Court below must be reversed.


text:
    Giddings vs. Whittlesey and Chittenden.
    A defendant sued here in assumpsit on a judgment rendered in Ohio on a cognovit may* prove, under the plea of the general issue, any defence which in that State would be a good ground for setting aside the judgment, or an order to deliver up tho cognovit to be cancelled.

      Berrien Circuit,

    October, 1871.

      Clapp, for Plaintiff.

      Ormsbee & Muzzy, for Defendant Whittlesey.
    Assumpsit on a foreign judgment.
   By the Court,

Blackman, J.

The plaintiff sued the defendants in assumpsit on a judgment of the Court of Common Fleas of Fortage County Ohio.

. To this, defendant Whittlesey who was the defendant served with process, pleaded the general issue.

-By adopting this form of action the plaintiff subjected his case to all the rules of law'relating to pleading and evidence in assumpsit. The j udgment counted on creates the liability, which forms the consideration of the promise. 1 Sanders on Pl. & Ev., 113.

Our statute, § 4550, does not in express terms make any change in the rules of pleading. Gooding vs. Hingston, 20 Mich., 440.

The judgment counted on, when in evidence, proves all the alie-., gations the plaintiff is bound to make out by proof in order to recover.

The effect of our statutory plea of the general issue is to require the plaintiff to prove all of his allegations which entitle him to a recovery according lo the form of action he has adopted. 9 Mich., 375.

Under his plea the defendant may prove without notice in this action a want of consideration. Ih short he may disprove every allegation the plaintiff must prove. 1 Sun. Pl. & Ev., 138; 2 Id., 720.

The judgment- when introduced in evidence is as couclusivo as when pleaded as an estoppel or counted on. 1 Green. Ev., § 531. And this is so because of the intrinsic force of the judgment as a res adjudicóla.

This'conclusiveness depends on the nature of/the record and on the tribunal. Elliott vs. Green, 10 Mich., 116.

It has no higher dignity here than in the State of Ohio, and if inquirable into there it will be, open to investigation here to the same extent, according to our rules of practice. Wood vs. Watkinson, 17 Conn, 505, 508, 510; Bonesteel vs. Todd, 9 Mich., 376.

It is always competent to inquire into the jurisdiction of the Court, and if it is acquired by fraud the judgment is void. Vose vs. Morton, 4 Cush., 27; Bank of U. S. vs. Moss., 6 How., 39.

From the record in this case it appears that this court was one of general jurisdiction; that the cause of action Was a money bond signed by both defendants, a cognovit actionem in' the usual form, both dated June 3, 1860; that the .suit was. begun- -by process November 9, 18(17, by filing a petition and praecipe, which process was returnable November 18th, 1867, and was indorsed with a notice that in* case the defendants did not appear by December 7,1867, judgment would b'e taken for $462 32, and was served on Chittenden December 12th, but not on Whittlesey, who had resided in this State since 1863, and-was returned; that on the same day plaintift took judgment by confession for $502 SO and costs, under the cognovit, and that this plea confessed the truth of the petition filed a? commencement of suit by process.

The Court must presume in absence of proof to the contrary that the principles of the common law prevail in Ohio. • That therefore it may look at the record for the purpose .of determining the judgment. 20 Mich., 440; cates cited in note. 4, to sec. 541 of 1 Gr. Ev.

The defendant may disprove the jurisdiction. Shumway vs Stillman, 6 Wend., 447.

While from the nature of the case the defendants can not dispute the judgment by plea and evidence directly, the plaintiff'must strictly pursue his power of attorney, and the defendants may attack it by motion and a trial of a feigned issue. See 5 Hill, 497; 9 John. 79.

The judgment being subject to revision in the State where rendered is subject to revision here, but as the record is not of this court, the defence which might in Ohio have been tried on a feigned issue, may be here tried in a suit brought on the judgmeut.

For the conclusiveness of a judgment depends on the fact that it was rendered on a trial of the merits where the defendeut had an opportunity to litigate. -’The court could- obtain no juisdietion over the person by the use of a void power of attorney nor by the braudulent use by the plaintiff of a valid - one; nor where the power is not strictly persued. Gr Practice.

For these reasons, the defendant W. was allowed to prove that plaintiff on payment to him of two per cent, additional interest over the lawful rate by defendent Ohjttenden, extended the time.of payment without W’s knowledge or consent from year to year till June 1867; that in the spring of 1867, C. became insolvent and wont-into bankruptcy and that W. was security on the bond for C., said plaintiff well knowing the same.

This is a defence to the action on the bond here, and in Ohio would support a motion to set aside the judgment. 1 San Pl. & Ev 527.


text:
    Arwood McPhee v. The Circuit Judges of Wayne County.
    Criminal Law — Appeal from conviction BEFORE A JUSTICE OF THE PEACE. —Enforcement of appearance of respondent at Circuit Court.
    Relator applied for mandamus to compel tlie respondent to vacate certain proceedings resulting in the forfeiture of his recognizance to appear at the Circuit Court and answer to an information to be filed against him for assault and battery, the issuance of a capias for his arrest, and the requirement that he enter into a new recognizance for his appearance. An order to show cause was denied.

      Hamilton Bolus, for relator.
   The facts as alleged in the petition for. ■mandamus were as follows: McPhee was convicted in justice’s court of the offense -of assault and battery. He desired to appeal to the circuit court, and was required by the justice to recognize, in the form applicable to a case of felony, for his appearance at the circuit court, to answer to an information that might be filed against him for said offense. McPhee failed to appear, and was brought before the court upon a capias issued under How. Stat. sec. 9575, which provides that “when any person, under recognizance on an appeal in a criminal proceeding from a conviction and judgment of a justice of the peace, shall not appear according to the conditions of such recognizance, and the said recognizance shall have become forfeited by reason of the breach of the condition thereof, and such forfeiture shall have been entered on record by order of the circuit court, it shall be lawful for said court to issue a capias for the arrest of the appeüant or defendant named in such recognizance to bring him before the court to answer to the complaint or prosecution against him in the proceedings in which such appeal was taken;” and, despite his objection that the recognizance was void, was required to enter into a new recognizance for his appearance. McPhee then moved to quash the proceedings on the grounds:

a — That the circuit court acquired no jurisdiction over him, or the action.

b — That the first recognizance was not such an one as the justice of the peace could take or require to he given, nor such an one as could be forfeited under How. Stat. sec. 9575.

c — That the order requiring a new recognizance was void.

The motion was denied, and McPhee was required to go to trial. It appearing that the clerk had omitted to enter in the journal of the court the order declaring the first recognizance forfeited and directing that a capias issue to bring McPhee before the court, permission was given to enter said order nunc protune.


text:
    Emma L. Collar v. Rollin H. Person, Circuit Judge of Ingham County
    Appeal from Justice’s Court. — IDismis- ■ SAL OF BECAUSE NOT PERFECTED BY-THE PAYMENT OF COSTS AND CLERK FEES, WITHIN THE STATUTORY TIME.
    Relator applied for mandamus to compel the respondent, among other things, to reinstate relators appeal from a justice’s judgment and try the same, for the reason that the justice', of the peace by his statements made to relator’s husband prevented her from perfecting her appeal. An order to show cause was denied.

      G. F. Ottmar, for relator:
    u Cited in support of tion How. Stat. see. 7019; Wiley v. cuit Judge, 29, Mich. 487; Freston u. Circuit Judge 242; Merriman v. Circuit Judge % Id. 603; Swarthout v. Cirmit Judge 99 Id. 347. ' , Wiley Gir- ■ ~ ■’
   The facts as alleged in the petition for mandamus were as follows:

a — That on October 22, 1894, a judgment was rendered against the relator in justice’s court for $95.50 damages and $3.50 costs of suit.

6 — That on October 25, 1894, relator’s husband, acting for her, filed with the justice the usual affidavit for appeal, and two days later'filed, the required bond, which was approved by the justice, who informed the husband,' in answer to his inquiry that he had done all that was required to perfect .relator’s appeal; that relator and her husband relied upon said statement and, being ignorant as to what was required, went, away believing that relator had in all things completed her appeal.

c — That relator and her husband left the county for a week; that on their return relator received a letter from the justice informing her that the costs and one dollar for making his return must be paid before said return could be made; that relators husband paid said costs and return fee and was informed by the justice that this was all that was necessary to be done upon which information he, as also the relator, relied^ ,

d — That on April 19, 1895, an order was made by the circuit court upon the application of the plaintiff, commanding , justice/ of the/ peace- ib usshe an. execution upon the judgment; "that 'the of the justice to said application 'didnotinform'the- circuit court of the real!'acts' iiTthe case; that the execution issued and returned unsatisfied. e — That on March 14, 1896, relators: attorney "paid the clerks fees, at which plaintiffs attorney had the files in ease; that on April 14, 1896, plaintiff a transcript of the judgment to. filed in the circuit court upon which execution was issued.


text:
    Oliver Potvin v. Andrew C. Maxwell, Acting Circuit Judge of Alpena County.
    New Trial. — Refusal of Circuit Judge: TO PERMIT DEFENDANT TO MAKE HIS. SPECIAL DEFENSE.
    Relator applied for mandamus to compel the respondent to set aside a verdict,, and reinstate the case for trial, and on a, retrial permit the relator to make and put in the defense set up in his special notice of defense, in the usual way. An order to show cause was denied.

      J. D. Turnbull, for relator, contended:
    That while an appeal is open to the relator, it will only decide that it was error for the respondent to rule out relators defense ;tliat upon a retrial, if it be had before respondent, he might repeat the same thing and that the only complete-remedy is by mandamus.

   The facts as alleged in the petition for mandamus were' as follows:

.a — That the Drovers National Bank sued-relator, in justice’s court upon a promissory note, executed by the relator and, as averred indorsed and transferred by the payee to the plaintiff for a valuable consideration, before maturity.

h — That the relator under his plea of the general issu'e gave notice that he» would show on the trial that said note was obtained by the fraudulent representations of the payee; that the plaintiff had notice of this fact when it purchased the note; that said noté was void, because without consideration,. and set up a state of facts supporting said notice.

c — 1That relator recovered a judgment in justice’s court and the plaintiff appealed to the circuit court.

d — That at the commencement of the trial, at the circuit, the respondent asked that the pleadings be read; that upon such reading being had the respondent decided that the relator had no right to make any defense in the case; that the plaintiff was allowed to put in its evidence; that relator then offered to prove all of the facts set up in his special notice but the respondent refused to permit him to do so and directed a verdict in favor of the plaintiff.


text:
    Sarah J. Janes v. Thomas Lyon.
    Writ op error-.- — Extension of time POR ISSUANCE OF.
    The defendant applied for an extension of time in which to sue out a writ of error. The judgment which was sought to be reviewed was entered November 13,1894, upon a verdict directed by the court, on the ground that as a matter of law, the defense sought to be interposed was not well taken. On May 20,1896, the defendant, without having settled a bill of exceptions made said motion which was denied.

      L. B. Thompson, for motion.

      Mains & Mains contra, contended:
    1. That the court had no power to grant the application; that the showing made by the defendant did not bring the case within 3 How. Stat. sec. 8086, which limits the time for bringing a writ of error to one year, subject to an extension of not exceeding six months by the Supreme Court or one of the Supreme Court justices at Chambers, when the party making the application has been prevented from taking out the writ by circumstances i^ot under his control. ■
   The facts as alleged by the respective parties were as follows:

a — In his affidavit filed in support of said motion the defendant averred that he took the usual extensions of time for settling a bill of exceptions; that the usual stay-of proceedings was. granted and that he gave the required statutory-bond; that he at- pnce gave the court stenographer ah order for'á copy of the record in the basé, and;did every, tiling in his power to get f ilié case into the supreme court for' .review;' that the business of the stenographer was such that he could not for along time write up the case; that defendaut.had. not been able to get the case settled,.-.although it was nearly ready for settlement; that if the motion was granted- defendant would be able to remove the -case to the supreme court for review, otherwise not.

6 — In his affidavit .filed in opposition to the motion the plaintiff’s attorney averred that only one extension of time-in which to settle a bill of exceptions was granted; that notice was given of the settlement of said bill of ’ exceptions for a day in the June term 1896, of the circuit court in which the case was tried; that prior to the time so fixed, affiant prepared and served amendments to said: bill, and was ready to settle the same at said date, or at any other reasonable time; that no material disagreement existed between affiant and defendants attorney as to the. propriety of said amendments, the only question involved being as to the phraseology used in reducing the evidence to a narrative form; that-since the time fixed for settling said bill of exceptions the defendant’s attorney has constantly stated that he would', call the case up for settlement, but that he has not done so.


text:
    Mary G. Sheppard v. Victor H. Lane, Acting Circuit Judge of Wayne Co.
    Homestead. — Levy of Execution thereon — Bill TO REMOVE CLOUD THEREBY CREATED. ■ ■
    Relator applied for mandamus to compel respondent to hear and decide upon the merits the ease made by her bill, filed to remove the cloud. created upon her homestead by an execution levy. An order to show cause was denied, appeal being the proper remedy.

      Charles C. Stewart, for relator contended:

      1. That relators case was an. exception to the rule requiring a review of a decree byappeal; citing City of Detroit ■v. Circuit 'Judge, 79 Mich. 384, and that if an appeal is taken,' in the ordinary way, the homestead will be wiped <5ut by tlfe' foreclosure1'proceedings - before the' appeal can be heard;
   The faets as alleged in the petition for -mandamus v/eiQ as’fallows:

o — That on April' 10, 1892, relator purchased a homestead in the City of Detroit for $2800, which' included a purchase money mortgage'for $2000 and had occupied the premises as her homestead since said purchase.

b — That on September 18, 1893, said homestead and- other property were attached at the'suit of one of relators creditors; that in December 1893, the plaintiff in attachment obtained a judgment against relator; that an execution was issued on said judgment and levied upon said homestead in continuation- of the attachment levy; that said homestead is only worth including said mortgage, which amounts to $2400 the sum of $3200; that the mortgage has been foreclosed by advertisement and the homestead sold to a third party; that the EKdemption year-expires October 28,1896; that relator has been prevented by said attachment and ' execution levies from selling said ' homestead or borrowing money thereon with which to redeem it from said mortgage.

e — -That on November 5, 1895, relator filed a bill in the Wayne circuit court in Chancery to remove the cloud created by the attachment and execution levies. (A copy of said bill is attached to the petition for mandamus, in which it is stated among other things that the premises levied upon were appraised; and that the appraisers found the value of the homestead including the mortgage to be the sum of three thousand dollars. A copy «of defendants answer is also attached to said petition, Editor.)

d — That the respondent dismissed said bill for the reasons, as stated in his opinion that the case made by the bill is that the premises levied upon are complainants homestead, and as to value within the statutory amount; that the defendants in their answer say that said premises are not complainants home- and if they are, that they exceed value the sum of fifteen hundred dollars; that the statute provides a by which under the levy the homestead question shall be determined; the .levy recognizes complainants homestead rights, and it is a simple question from the testimony as to whether the premises exceed in value the of fifteen hundred dollars; that the chancery court cannot intervene and the place of the appraisers provided by said statute, for the determination this question.


text:
    Max Lange et al v. Fred J. Russell, Circuit Judge of Muskegon County.
    Rehearing — Certificate of Counsel under Chancery Rule No. 81 — Who COMPETENT TO MAKE. — MAKING OF N.UNC PROTUNC.
    Delators applied for mandamus to compel the respondent to vacate an order granting a rehearing, on the petition of the Auditor General in the matter of his petition for the sale of lands, in Muskegon County, delinquent for the taxes of 1893. An order to show cause was denied.
    P. M. Nislcern (Smith. Nims, Ifoyt <& Erwin, of counsel) for relators.
   The faets as alleged in the petition for mandamus were as follows;

1. That at the September term, 1895, of the Muskegon circuit court, in Chancery, a decree was entered dismissing the petition of the Auditor General as to the taxes assessed upon the lands of the relators, for the reason that said taxes were invalid.

2. That on April 7, 1896, the Auditor General filed a petition for a rehearing as to relators lands: that on June 13, 1896, said petition came on. for hearing, at which time the relators objected to its being heard because;

a. Said petition was not filed until after the time for taking an appeal had expired.

□ b. No good and sufficient reasons were set up in said petition upon which to base the order asked for.

c. The certificate of counsel required by Chancery rule No. 81 did not accompany said petition.

3. That thereupon Bunker & Carpenter, who appeared as counsel for the Auditor General, asked leave orally to file their certificate mmc protune, under said rule; that counsel for relators objected to the granting of said request for the reasons:

a. That the filing.of said certificate at that time was hot a compliance with said rule.

b. That Bunker & Carpenter were disqualified from making said certificate in as much as they represented the Auditor General in the matter of the petition for a rehearing, the same being sighed by the Attorney General as solicitor for said petitioner and by Bunker & Carpenter as counsel, and that the Attorney General had never personally appeared as such solicitor.

That respondent despite said objections made an order by which, after reciting substantially the foregoing facts; that the petition was first' brought on for hearing on April 11, 1896; that ■objection was made on’the sole ground that the petitioner was not represented by solicitors entitled under the rules and practice of the court to be heard in his behalf in said matter; that said objection was overruled and filíe further hearing of the matter continued by consent to enable the relators to appeal to the Supreme Court, granted leave to the Auditor General to file said certificate, and directed that when filed, it should have the same force as if it had accompanied the petition for a rehearing.

4. That the hearing of said petition was continued to June 23, 1896; that a certificate was thereupon filed by Bunker & Carpenter to the effect that they had examined the case contained in the petition for a rehearing and in their opinion the decrees in favor of the relators were erroneous, in the- particulars mentioned in said petition.

5. That on June 16,1896, a petition to vacate said order was denied.


text:
    Frank C. Schattler v. Willard M. Lillibridge, Circuit Judge of Wayne County.
    Notice op Trial — Necessity op in Quo Warranto Cases.
    Relator ..applied for mandamus to coinpel the respondent to vacate an order placing the issue framed in a quo warranto proceeding, -brought to test relators title to the office of Supervisor on the calendar, and setting a day for the, trial thereof during the then term of court without service of notice of trial, as provided for by How. Stat.'§. 7561. Ah order to show cause was denied.

      William Look and Ira G. Humphrey, for relator contended:
    1. That on April 21, 1896, the Supreme Court adopted Circuit Court Rule No. 108 (104 Mich.) whieh provides, among other things that the issue framed in a quo warranto case by the filing and service of a replication to the plea of the respondent shall be- at once placed upon the calendar of the then pending term for trial, upon due notice by either party, and shall be given precedence over -all civil cases, and that the Circuit Judge acted finder said rule in making 'the order complained of.
    ,.2. That upon the hearing below réspondent’s counsel cited as authority for making said rule section 3, of Act. No. 221, Laws of 1861 (How. Stát. § 8662) which authorized the circuit courts tó make rules to regulate proceedings finder informations Jn.the nature.of quo.war.[r'anto, to have effect until the Supreme Court should make rules thfireffir;'that sáid statute does not affect the -¡jufedfion under discussion; and if it. did, - it "wad repealed by How. Stat. sec. 7551,. which, as -amended ip 1883, proyides .“that written notice of trial of ,'every issue of fact in a circuit court shall in • all cases be served at least fourteen days before the first dayof the court at -which said trial shfill be intended to be had.”

      Allan H. 'flrazer, prosecuting attorney, {Charles.H. Warren, of counsel) for respondent, pontefided:
    1. Thdt 'tfie information was. .filed three, days pifter ‘the adoption.- of ;Circuit Court 111116 No. 108,' which 'jjfqiyidep among other things,,- that ■ pito 'warrántó cases shall be deeqied to be at ¡issue upon the filing and serviee of a .replication to the plea of the respondent’ to the ’information filed against him; that under How. Stat. seC. 6409, the Supreme Court has authority to regulate the forms of pleading; that the adoption of said rule removes all question as to whether or not a similiter was necessary to put the case at issue, and as to whether or not notice of trial should have been served after the filing and service of the similiter.

    2. That the only other question raised by counsel for relator is that Circuit Court Buie No. 108, contravenes How. Stat. § 7551 cited in his brief; that said section is not applicable to the trial of 'quo warranto cases; that the Supreme Court in adopting Circuit Court Buie No. 108 prescribed a rule for the trial of such cases; that it was empowered to do so by § 8, article 6, of the Constitution as amended, and by virtue of its authority under How. Stat. Chap, 278, to regulate the trial of such cases; that when the circuit courts were given jurisdiction of quo warranto cases, How. Stat. § 7551 did not apply to the trial of the same, nor, by reason of the vesting of original jurisdiction in the circuit courts to try such cases, did said rule become applicable, the power to make rules governing their trial being granted to the Supreme Court.
   The facts as alleged in the petition for mamdamms were as follows:

a — That on April 24,1896, the prosecuting attorney of Wayne county filed in the circuit court for said county an information in the nature of quo warranto to test the title of the relator to the office of Supervisor.

b — That on May 13, 1896, the relator pleaded to said information setting forth his election, denying the election of his opponent named in the information, and averring the issuance to him on April 8, 1896, of a certificate of election.,

c — That on May 16, 1896, a replication was filed .to said plea, and a copy thereof served on relator.

d — That on May 18, 1896, the prosecuting attorney entered a motion that said ease be placed on the docket of the then present-April term of court, for trial, and caused notice of the hearing of said motion to be served upon relator.

e — That on May 20,1896, relator filed a similiter, to said replication,' and caused a copy thereof to be served. on the prosecuting. attorney.

f — •That on June 5, 1896, respondent made an order granting, said motion, and setting the case down for trial for June 18,1896.

g — That the said April term of court commenced on April 7,1896, and terminates on July 7,1896, at which time the next term of said court will commence.


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    Sarah C. Orth v. Frank D. M. Davis, Circuit Judge of Montcalm County.
    Action. — For the negligent setting of fire — Survival of.
    . Belator applied for mandamus to compel the respondent to set aside an order dismissing a case commenced by relators husband, in his life time, to recover the value of property destroyed by the alleged negligent setting of fire by the defendant, said case having been revived in relator’s name, as executrix, and to reinstate the case. An order to show cause was denied, error being the proper remedy.

      George II. Gagwin, for relator.

   The facts as set forth in the petition for mandamus were as follows:

a — That the husband of the relator brought suit in his life time against the village of Carson City to recover damages for the destruction by fire of his saw-mill and other property, originating, as claimed, from sparks escaping from the smoke stack of the water works engine house of the defendant on account of its failure to equip the smoke stack-with a suitable hood or spark arrester.

6 — That after the joining of issue the plaintiff died, and the ease was regularly, revived in the name of relator as executrix.

c — That thereupon the defendant moved the court for an order dismissing the ease for the reason that the cause of action did not survive to the relator as executrix, but to the heirs at law of the testator, which motion was granted.


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    David Epstein v. Erastus Peck, Circuit Judge of Jackson County.
    Capias — Return day — Error in stating.
    Relator sought to compel the respondent by mandamus to quash a writ of capias ad respondend/um on the ground that the return day was more than three months after the teste day; that the first day of the next term of court fell within said three months, which date should have been the return day under 3 How. Stat. § 7295, whieh provides that writs of capias ad respondendum shall be made returnable on the first Tuesday of any month, and also on any day in term, subject to the proviso that said writs shall not be made - returnable beyond three months from their date, unless more than that time intervenes before the next term of court, in whieh case they shall be made returnable on or before the first day of the next term.

      John G. Hawley, for relator.

      Bowen, Douglas <& Whiting, for respondent.
    The respondent returned that the capias was issued March 16, 1896, and, as stated therein was made returnable on the seventh day of July, 1896, that being the -first day of the succeeding term of court; that the first day of the next term of court was April 7, 1896, and that in respondents opinion the writ was intended to be-made returnable on that day.
   A writ of mandamus was denied under Wonderly v. Circuit Judge, 41 Mich. 722, where a capias was made returnable “on the seventh day of October, 1879, that being the first day of the next succeeding term,” when, in fact, the first day of said term was Oct. 6,1879. And in denying the application of the defendant for a mandamus to set aside the writ it was held that the capias showed plainly on its face that if was intended to be returnable • on the- first day of term, which was the only day on which it could be made' returnable. (This was before the 1885 amendment of the statute); that, having such a recital in it the writ furnished the means of its "own correction, and the erroneous mention of a wrong day of the month would not vitiate it; that one or the other day being incorrect it must be held that the intention was to make the writ returnable on the day whieh would be legal.


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    Michael F. Griffin v. Allen C. Adsit, Circuit Judge of Kent County.
    Affidavit — For order to hold to bail. Sufficiency of.
    Relator applied for mandamus to set aside an order to hold- to bail for the reason that the affidavit showed no cause of action to justify the arrest of the relator. An order to show cause was granted and on the hearing, on petition and answer, the application was denied.

      D. E. Corbitt, for relator.

      Thompson é Temple, for respondent.
   The affidavit charged the relator with the unlawful conversion to his own use of $475.10 under the. following alleged state of facts:

a — That relator was a relative of the plaintiff and one in whom plaintiff reposed special confidence.

6 — That on October 10, 1893, plaintiff being desirous of selling a bakery and lunch counter permitted relator, who was an attorney at law, to take full charge of the sale of said business; that for a long time prior to said date plaintiff had been in the habit of delivering 'hismoney to relator for safé keeping, and on that day permitted him to collect, the money realized on the sale of said business, amounting to -$483.35; that at the same timé plaintiff gave relator $150,, and requested him to hold said moneys! as trustee and to give plaintiff- a receipt therefor; that relator gave plaintiff an order -upon a certain bank for the payment'to plaintiff or bearer of $533.35, said order being signed by relator; that plaintiff left the .city where relator and plaintiff resided, and remitted to relator $231.10, to be retained by him for plaintiff’s use and benefit; that during all of the time aforesaid relator, upon plaintiff’s request, paid plaintiff such amounts ■of money as he from time to time asked for.

c — That on February 20, Í896, plaintiff returned to the city, and being desirous of purchasing a house consulted with relator as to the feasibility of making such purchase; that relator advised plaintiff that he could not return Ms money at that time as he had all of his money tied up in another city, and made no other or further reply.

d — That plaintiff has requested] the return of said money; that relator has refused to return it, and has informed plaintiff that if he had any legal remedy to pursue it; that said moneys were never loaned to relator, but were delivered to him in reliance upon his relationship to plaintiff, and the friendship existing between them, as trustee or special agent of plaintiff; that the amount of money in rotator’s hands is $475.10, and that relator’s statement ■ as to his money being tied up was untrue; that at the time he made it he had a large sum deposited in the banks of the city where he resided.


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    William J. Brown v. Robert E. Frazer, Circuit Judge of Wayne County.
    Rule to plead. — Effect of failure . to ENTER. 1 , .
    Relator applied for mandamus to pompel respondent, to dismiss, a casé commenced by declaration .for failure to enter a rule to plead as. required by the-statute. ■ .

      William Stacey, for relator.
   An order, to show causo wás denied under the rule laid down in Coen. \llinkley, decided June- 30,-. 1896, and reported in the Detroit Degaf.'News of July. 15,' in Which case a copy of tlye rule to.. .plead served on the defendant. was endorsed on the copy of the. declaration. on. which return of service .was made.: . And it.. was held that if, as-a fact, :the rule; te .plead was mot entered, it might be . entered,' nuno protunc, under the statute of amendments.


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    Fred Woempener v. Elwood F. Ketchum.
    Bond—Supersedeas to stay execution.
    Motion by defendant Ketchum for a of Supersedeas to stay execution. The facts are stated below.

      J. J. Patek, for motion.

      J. W. Byers, contra.
   Ketchum brought certiorari to justice’s judgment. He gave the usual bond. The judgment was affirmed, and proceedings thereon stayed for twenty days. During the life of the stay Ketchum sued out a writ of error, but filed supersedeas or other bond. After the expiration of the twenty days, and after return of the writ, and before the expiration of the thirty days within ■ which an execution must, under How. Stat. § 7029, have been issued in order to warrant its levy upon the property of surety, Woempener took out an execution, and caused it to be levied, upon the real estate of the surety. (Under Weiss v. Circuit Judge, 50 Mich. 158, said thirty days commences to run from and after the taxation .of. .costs) Ketchum moved in the Supreme Court for a writ of supersedeas to stay execution upon the circuit court judgment, ,aiid presented with the motion the usual sivpersedeas bond with two. sureties, each whom justified .in the penalty-of .the bond.. This showing was met by four affidavits as .to the , pecuniary irresponsibility of the proposed sureties.


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    Delia McMillan v. Roscoe L. Corbetu, Circuit Judge of Grand Travrse County.
    New', Trial. — Entry pF motion for, WITHOUT LEAVE OF THE COURT . AFTER ,THE EXPIRATION, OF THE TIME LIMITED BY RULE FOR ENTERING SAME.
    Relator applied for mandamus to compel the ■ respondent to vacate an order granting a new trial. An order to show cause was denied. .

      Turner. &. Gates, for relator..
   .. The facts .as .alleged mandamus were as follows:

1. on covered a judgment against a mutual benefit society; that ten days later, and during the same term of court, and without having obtained any extension of time for that purpose, the defendant moved for a new trial on the ground that plaintiff’s husband, in consequence of whose alleged death the suit was brought, was-alive, and that the defendant did not have an opportunity to present its defense, owing to the fact that its attorneys were not advised of the exact time of trial; that it was conceded that in case of a new trial the defense should be limited to the question of the death of plaintiff’s husband; that the motion was noticed for June 1,189(5, and on May 27, 189(5, seven additional affidavits in support of the motion were served on plaintiff’s attorneys; that plaintiff’s attorneys objected to the hearing of the motion for the reasons:

« — That more than one day in term had elapsed since the entry of the judgment before the motion was entered, that being the time limited by a special rule of the circuit court within which a motion for a new trial could, as a matter of right, bo made.

b — That 10 days in term had elapsed between the entry of judgment and motion, and that under Circuit Court Rule No. 31, which provides that “motions for a new trial, with the reasons on which they are founded, shall be made within two days after the rendition of the verdict, in case of a trial by jury, and where the ease has been tried by the court two days after the decision of the court, and if two days in the same term do not intervene after such verdict or decision such motion shall be entered on or before the first day of the next term,” said motion could not be granted without first obtaining leave to make the same.

That in support of this contention plaintiff’s attorneys cited People v. Circuit Judge, 20 Mich. 220, where it was held that Circuit Court Rule No. 31 is subject to the further provision in Circuit Court Rule No. 72 allowing the circuit court to extend or shorten the time in which to move for a new trial, and was not intended in any way to interfere with the common law discretion of the courts, but only to fix a time- beyond which no one could move, as a matter of right, and •without leave-, that it is not clear that motions for new trials, based on newly discovered evidence, would come within the rule fixing the time, for the facts may not be ascertained until afterwards.

2. That objection was'also made to the reading of the affidavits served on May 27, on the ground that they were not served until twelve days after the entry of the motion for a new trial, while Circuit Court Rule No. 28 provides that “in all cases of special motions, except a motion for a continuance, the affidavits and other papers on which the same may be founded shall be filed at the time of entering the motion, and copies thereof shall be served on the attorney of the opposite party on or before the day of entering such motion, unless further time is granted.”

That in'support of this objection plaintiff’s attorneys cited Hill v. Webber, 50 Mich. 142, 144, where, the defendants in replevin filed an affidavit with the clerk for judgment, as in case of non-suit, and at the same time entered a motion for such judgment in the special motion book, and three days later served a copy of the affidavit with notice of the hearing of the motion upon the plaintiff’s attorney. No extension of time for making such service had been granted by the court. Objection was made to hearing the motion because the affidavit upon which it was based was not served until three days after the entry of the motion. The objection was overruled, and judgment passed in favo]’ of the defendants. And it was held, after citing the provision of the rule requiring the filing of the affidavits and other papers upon which a special motion is based at the time of entering the motion, and the service of copies on or before the day of such entry unless further time is granted, that the defendant’s motion for judgment was within these provisions, and no other mode existed for bringing it on; that the plaintiff might have waived the observance of this requirement, but he did not; that it was his right to insist on strict compliance and he did so; that he objected that copies of the papers were not served on or before the day of entering the motion, and the objection was a valid one.

Plaintiff’s objections were overruled, and a new trial ordered.


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    Isaac Brown v. Sherman B. Daboll, Circuit Judge of Clinton County.
    Deposition — Of party taken under Aut No. 181, Daws of 1805.
    Relator applied for mandamus to compel the respondent to vacate an order requiring him on being subpoenaed and paid his legal fees to appear and testily under said statute. An order to show cause was denied.

      Holland J. Cleland, for relator.
   The facts as set forth in the petition for mandamus were as follows:

1. That relator was sued by an administrator upon his notes given to decedent; that relator appeared and demanded a bill of particulars, which was not served, and proof of that fact was filed in the case.

2. That at the time said suit was commenced garishment proceedings were instituted against a son of the relator, who in his disclosure denied all liability; that exceptions were-filed to said disclosure.

8. That at this stage of the proceedings the plaintiff made an ex parte application to the respondent for an order for the examination of relator as a witness under Act No. 181, Laws of 1895, which provides that the deposition of a party may bo taken before a judge at chambers or circuit court commissioner, after the commencement of suit and before judgment on a previous notice to such party and any other adverse party or their respective attorneys of at least five days; that if such testimony is taken on the part of the plaintiff before issued joined, the notice of taking the same shall be accompanied bv an affidavit of the plaintiff, his agent or attorney, stating the original nature and object of the action; that discovery is sought to enable the party to jilead, and the points upon which such discovery is desired; that such examination shall be limited to the discovery of the facts relevant to the points so stated, unless the court or presiding judge thereof, or such circuit court commissioner on motion and one day’s notice shall before the examination is begun by order further limit the subjects to which such examination shall extend; but such examination shall not preclude the right to another examination after issue joined, upon all the issues in the ease, and the party examining shall' in all cases be allowed to examine on oral interrogatories. .

4. That the application was based upon plaintiff’s affidavit, in which, after stating the facts as to the commencement of the suit, and its object, and the institution of the garnishment proceedings, he averred that the application was based on information which he believed to be true, to the effect that since the death of the decedent the garnishee defendant had induced the principal defendant to mortgage his farm to secure a loan of $3,000, to be used in paying plaintiff's claim; that said money had been paid to the garnishee defendant; but he had refused to pay plaintiff’s claim; that since giving said mortgage the defendant had given a mortgage for $1,500 to his daughter; that if said mortgages were to be prior liens on the farm, and the $3,000 was not applied in payment of plaintiff’s elaim, it would be lost; that the principal defendant was infirm and much under the influence of his son; that the plaintiff was advised that the testimony of the defendant was material and should be taken at this time to enable the plaintiff to protect the estate against loss.

5. That an order was made by the respondent requiring the relator, on being subpoenaed and paid his legal fees, to appear and testify; that a copy of the order and a subpoena to appear and testify were served on the relator and his fees paid; that the relator moved in the circuit court*to quash the proceedings upon the grounds:

a — That the act of 1.895 does not provide for any such proceedings, ■

¿ — That the íiet does not provide fot' filing Such an affidavit as was filed, and, if it does, the affidavit filed is insufficient.

That the motion was denied.


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    Mary Grady v. John Sullivan et al.
    Writ of error — Kxtension of time for _ RETURN OF.
    The appellee moved to dismiss the writ of error, issued in this case, the time for the return of _which had been extended by one of the circuit judges of the county of Kent, but not the one before whom the ease was tried, after the refusal of the trial judge to hear an exparte application for such extension of time. The motion was denied.

      E. J. Boyle, for motion.

      McBride & McBride contra, contended:
    1. That no notice of said application was required.
    2. That had it been the intention of the Court framing Supreme Court Rule No. 15, which provides that the time for returning a writ of error may, before the same has expired, be extended for a period not exceeding forty days by a Circuit Judge upon an affidavit showing the occasion for such extention, to confine the power therein granted to one of the Justices of the Supreme Court, or to the Circuit Judge before whom the case was tried, such intention would have been expressed in the rule; that in this case the trial was had in the Kent circuit where two judges of equal concurrent power sit and try cases alternately; that each is a judge of that circuit; that the writ is addressed to that circuit, and even if it be held that the order for extension should have been made by a judge of that circuit, the appellants complied with that construction of the rule; that the facts that the life of the writ had nearly expired; that the clerk’s office closed at 5 o’clock p. m.; that the order should be entered before the writ expired; that the office of the judge who tried the ease was closed when the final application for an extension was made, and that appellants might, if they had not applied to the other judge, have lost their rights, bring them within the spirit, if not the letter, of the rule; that the fact that the judge first applied to might have returned to his office after the order was made, and was there seen by the judge who made the order as he certifies, in no. way answers the proof that the office of said first named judge was closed when the attorney for the appellants went td apply for said order.
   The facts as shown by the papers in the case were as follows:

a — That judgment was rendered October 9, 1895, in favor of the plaintiff; that on the application of the defendants the time for settling a bill of exceptions was extended until December 31,1895; that four days before the return day, the Circuit Judge before whom the case was tried made an ex parte order extending the time for returning the writ of error for forty days; that after the expiration of that time said writ was on motion of the appellants dismissed.

5 — That on April 7,189(1, a second writ of error was issued returnable May 10, 1896.

e — That on May 14,1890, the junior attorney for the appellants applied to the trial judge for an order extending the time for returning said writ of error; that said judge refused to entertain said application, ex parte-, that on the return day of said writ the senior attorney for the appellants made a like ex parte application to the other Circuit Judge who, in reliance upon the statement of said attorney that the trial judge could not be found in his office, and upon the strength of the affidavit of said attorney excusing the delay in settling a bill of exceptions on the ground of sickness, and averring his expectation of being able to settle the bill during the forty days extension asked for, granted said extension.

d — It further appeared from the affidavit of said senior attorney read in opposition to said motion, that on learning of th’e refusal of said trial judge to hear the application ex parte he went to the office of the opposing attorney, and found it locked; that he then went to the office of said judge, and could not gain admittance; that it was late in the afternoon of the return day; that he therefore presented the matter to the other circuit judge, and read to him the rule hereinbefore cited.


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    Frank Bublitz v. Andrew C. Maxwell, Circuit Judge of Bay County.
    Bill op exceptions — tiNi'OROEMENT op SETTLEMENT OP BY MANDAMUS.
    Relator applied for mandamus to compel tlie respondent to settle a bill of exceptions. An order to show cause was made, and on the hearing on petition and answer, the application was granted.

      J. C. Kinnane, for relator.

      C. L. Collins, for respondent.
   The facts, as shown by the answer of the respondent, were as follows: .

a — That relator replevied from a pound master several head of cattle which had. been impounded for trespassing upon the public highway; that all of the proceedings in the replevin suit were regular, except that the bond given to the sheriff had but one surety, while the statute required two; that the bond was accepted by the sheriff, and the cattle were delivered to the'plaintiff; that the defendant under his plea of the general issue gave notice that he would show in his justification that at the" time the cattle were taken up they were running at large contrary to law; that the case was on the calendar at two of the subsequent terms of court, and was continued by consent, that the third term it was brought on for trial, and after one witness had been sworn for the plaintiff the circuit judge discharged the jury from the further consideration of the east', and by his direction an order of discontinuance was entered for the reason, as set forth in the order, that it appeared that only one surety had signed the. replevin bond; that the action was replevin for distrained beasts impounded for running at large in the highway, and that How. Stat. § 8374, under which the action was brought, required two sureties to the bond.

6 — That relator presented a bill of exceptions for settlement, accompanied by assignments of error under Circuit Court Rule No. 85, as amended, to the effect that the court erred in discharging the jury, and rendering judgment; also in holding that the fact that there was but one surety to the bond worked a discontinuance of the case under tke stattiidj and in refusing to permit a trial of the ease upon the merits; that the circuit judge made the following endorsement on the bill of exceptions, which he refused to sign, namely, that there was nothing in the bill to show any of the testimony given on the trial; that an inspection of the reporter’s records showed that testimony was given showing that the cattle had been impounded for a trespass;.that the only question decided was that the statute, on grounds of public policy, required two sureties to the bond, and that the court must see that it was complied with; that the point decided was fully shown by the record, and could be reviewed by writ of error or certiorari, and that no bill of exceptions was necessary.


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    Union National Bank v. Erastus Peck, Acting Circuit Judge of Wayne County.
    Garnishment proceedings — Dismissal OF FOR LACHES IN BRINGING STATUTORY ISSUES TO TRIAL.
    The relator applied for mandamus to compel the respondent to vacate an order dismissing, on the motion of the garnishees, the garnishment proceedings instituted against them because of the laches of the plaintiff in failing for more than one year after the entry of judgment against the principal defendants, to bring the statutory issues to trial. An order to show cause was denied.

      Sloman, Groesbedc di JioUnson, for relators.
   The facts as alleged in the petition for mandamus were as follows:

a — That on May 17, 1894, the relator sued August Rasch and Oscar Rasch in the circuit court for the county of Wayne, and garnished in separate suits Augusta Rich, Frank A. Rasch and Lovina C. Rasch; that the garnishees filed separate disclosures and were examined before a circuit court commissioner, who filed his reports; that two of the garnishees denied all liability, and the third admitted the if&nsfer to her by one of the principal defendants; (her father) of a piece of property' without consideration; that a statutory issue was framed in each case, and demands for the trial of said issues were filed.

6 — That on January 3, 1895, judgment was entered in favor of the relator; that no stay of proceedings was granted.

e — That on April 23, 1890, after four terms of court had passed at which said issue could have been tried, and the same not having been placed on the docket for trial, the garnishees made a joint motion to dismiss the garnishment proceedings, for the reasons hereinbefore set forth.


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    Adam C. Arnold v. Clement Smith, Circuit Judge of Calhoun County.
    Criminal Law — Exhaustion of regular panel of jurors — Summoning of JURORS NOT SELECTED FROM 'THE BODY OF THE COUNTY.
    Relator applied for mamlamus to compel respondent to vaeate an order denying his motion in arrest of judgment,’ and to grant the same, as also a new trial. An order to show cause was denied.

      T. Jí. JUtrkworth, for relator, contended:
    1. That the question respecting the jury is a proper one to be determined on this application; that the error, if any, appears upon the. face of the record, ami is jurisdictional; that the remedy by ■mandamus is being extended year by' year; that without express authority "upon the precise point involved it is within the decisions of this Court in, recent years with respect to said remedy.
    2. That the objection of relator is based upon the fact that tire jurors suiimjoned by order ol' the court were, not selected from the body of tire county; that flow. Stat. § loW, as amended by Act No. 201, Laws of 1893, upon the authority of which, said order was made, provides:
    “Whenever, for any cause, grand or petit jurors shall not have been drawn or summoned to attend any circuit court, or aj sufficient number of qualified jurors shall fail to appear, such court may, in its discretion, order a sufficient number of grand or petit jurors or both to be forthwith drawn and summoned to attend said court: Provided: that in drawing jurors under this section the court may, for the purpose of obtaining a jury or talesmen near the county seaj;, direct from which township or supervisor district such jurors shall be drawn.”
    That the ease of People v. Jones, 24 Mich. 215, 221, shows that the object of this statute was to provide jurors for the <¡ene-mi purposes of the, term; that this View of the law was reasserted in People v. Hall, 48 Mich. 483; that in no event could it apply to the particular case on trial, nor could any order made in such case thereunder be valid.
   The facts, as alleged in the petition for mandamus, were as follows:

« — That on December 9, 1895, relator was placed on trial ior tlie crime oí murder; that during the process of impaneling a jury the regular panel of jurors became exhausted by the challenges of the parties, before a jury was obtained; that thereupon the names of certain jurors, drhwn and summoned by virtue of an order made December 4, 1893, which, after reciting that a petit jury had been drawn for the then term of court, but it appeared to the court that additional jurors were necessary at said term, directed that thirty four good and lawful men be drawn in the manner prescribed by law from the several lists of persons returned as petit jurors from five designated townships of the comity, who should be summoned to appear on December 10,1895.

6 — That respondent objected to the calling of said jurors, because not drawn and summoned under any law of this state authorizing the drawing and summoning of jurors for the trial of the case, and filed a challenge to the array for said reason; that said challenge was overruled, and the trial proceeded with said jurors forming a part of the jury in the case; that respondent was convicted of manslaughter, and moved in arrest of judgment for the reason stated, which motion was overruled.


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    Charity Hyatt et al. v. Victor H. Lane, Circuit Judge, of Hillsdale County.
    Appeal prom Probate Court — Dismissal op por FAILURE TO FILE TRANSCRIPT IN CIRCUIT COURT.
    Relators applied for mandamus to compel the respondent to' dismiss an appeal from the allowance of a will, because of the failure of the appellant to file in the circuit court within thirty days after such appeal was taken, the certified transcript required by 3 How. Stat. § 6782 to be filed in said court. An order to show cause was made, and on the hearing on petition and answer the application was denied.

      Fellows <£ Chandler, for relators, contended:
    1. That the filing by tíié áppeííañí o£ the required transcript before the entry of the motion to dismiss the appeal was' not a sufficient defense to said motion; nor does the case of Srvyder v. Circuit Judge, 80 Mich. 511, as construed in Merriman v. Circuit Judge, 95 Mich. 277, so hold:
    2. That there has been no waiver by relators of the failure of the appellant to file said transcript; that relators appeared specially in the circuit court, for the sole purpose of objecting to its jurisdiction, and moved to dismiss the appeal because of the failure of the appellant to give notice to relators, who were residuary legatees under the will, of the appeal; that it was ordered that th& appeal be dismissed unless such notice was given, and said order was affirmed in Strang v. Circuit Judge, 65 N. W.. Rep. 968; that as soon as said notice was given this motion was made; that relators were under no obligation to make-said motion before receiving such notice;, that the case is ruled by Merriman v. Circuit Judge, supra..

      Watts, Fean & Smith, for respondent,, contended:
    1. That it was the duty of relators at the time they made their first motion to give all of their reasons for asking for dismissal of the appeal; that if other grounds existed, not included in said motion, relators waived them by permitting the appellant to incur expense by complying with the order requiring him to give relators notice of said appeal; that upon every principle of fairness and equity they ought to be estopped from now raising the question of the jurisdiction of the circuit court over said appeal.
    2. That the whole matter is res judicata, the question as to whether or not the circuit court had jurisdiction in the premises having been before this court in Strang v. Circuit Judge, supra, where it was held that Julia Richmond, the first legatee named in the will, was an adverse party, within the meaning of How. Stat. sec. 6781, which -requires the appellant to give notice of the appeal to the adverse party, with his reasons therefor, in such manner as the probate court shall direct; that as to said legatee the appeal was well taken, and the circuit court acquired jurisdiction of the case, which decision cannot now be questioned by relators; citing Weed v. Mirick, 62 Mich. 414.
    3; That this motion comes too late, the required papers having been filed before it was entered, and before the entry of the former motion; citing Snyder v. Circuit Judge, 80 Mich. 511.
   The facts as established by the petition and answer were as follows:

1. That relators are residuary legatees under the will, horn the allowance of which an appeal was taken, April 22,1805

2. That none of the papers required by 3 How. Stat. see. 6782, to be filed in the circuit court were filed until July 9,1895, at which time all of such papers were filed in said court.

3. That on November 25, 1895, no notice of said appeal having been given to the relators they appeared specially by counsel before said circuit court for the sole pru-pose as stated of raising the question of the jurisdiction of said court, and moved the court to dismiss said appeal because of the failure of the appellant to give relators notice thereof;that an order was made requiring such notice to be given, and that in default thereof said appeal to be dismissed.

4. That the appellant applied for mandamus to set aside said order, which writ was denied for reasons setforth in Strang v. Circuit Judge, 65 N. W. Rep. 968.

5. That said notice having been given, relators, on March 9, 189(5, moved the circuit court to dismiss said appeal for the reason that the appellant had failed to file in the circuit court within thirty days after taking Iris appeal, the certified transcript required by 3 How. Stat. sec. 6782, to be filed in said court; that said motion was denied, for the reasons, stated in the answer of the respondent:

a — That the motion came too late, said transcript having been filed before said motion was made:

b — That it was the duty, of the relators when they made their first motion to have given all the reasons upon which they relied for dismissing said appeal, and not doing so, they waived the objection now sought to be raised.

c. — That the question as to the jurisdiction of the circuit court over said appeal is res judicata, such jurisdiction having-been affirmed in Strang v. Circuit Judge 65 N. W. Rep. 968.


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    Katherine Connell v. Jacob B. McNett.
    writ of error — Motion to dismiss, for FAILURE TO SERVE BRIEF.
    Motion by appellee to dismiss writ of error for failure of appellant to serve copy of brief. Granted unless in five days the appellant pays an attorney fee of $10. Case to stand for hearing at present term.

      George A. Farr, for motion.

      Walter I. Lillie, contra.'

   The facts as shown by the papers in the case, were as follows:

a — That the writ of error was issued October 1, 1895, returnable November 1, 1895, and was returned and filed October 10,1895.

b — That on December 3,1895, the attorney for the appellee noticed the case for hearing for the January, 1896, term of court, and the same was stricken from the docket, no .brief having been furnished by the appellant.

e That on March 7,1896, the ease was again noticed by the attorney for the appellee for hearing, and placed upon the docket for the ensuing April term of court.

d — That on March 27,1896, this motion was entered.


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    Mary W. Mullikin v. The City of Corunna.
    Notice of hearing — Whén case in condition for.
    Motion to strik - case from docket because not in a condition to be noticed for hearing. Granted.

      A. L. Chandler and A. E. Richards, for motion.

      Watson & Chapman, contra.
   The facts as shown by the record and papers in the case, were as follows:

a —That the writ of error was issued February 19,1896, returnable March 26, 1896, was returned March 25, -1896, and assignments of error were filed April 6, 1896.

b — That notice pf hearing was served Match 20, 1896,


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    Rachel Stone v. John Campbell and Florence Campbell.
    Bond — On chancery appeal--api'royai, OF EXPARTE.
    Motion to dismiss appeal for failure to file statutory bond, and give notice of perfecting appeal. Granted, unless appellant liles a new bond in 20 days, duly approved as required by statute.

      mitb, Mima, Hoyt <{'• Erwin, for motion, contended:
    1. That How. Slat. § (STUN, gives the appellant JO days in which to lile a bond, to be approved by a circuit judge or circuit court commissioner, oil a notice to the appellee of six days; that no notice of the presentation of the bond in this case for approval was given; that the bond is dated as of 1 he last day hut one on which the appeal could he perfected, and on the following day it was approved ex imrte by the circuit court commissioner; that under the provisions of the statute the appellant must give the appellee not,ice of a motion for approval not later than the thirty-fourth day, and by failing io do so the appeal is lost; that if the appeal is not perfected within the time limited by law, no jurisdiction is acquired by the appellate court, and the appeal should he dismissed; citing Moore r. Ellin IN Mich. 77; that the filing of a properly-approved bond is the only condition required by law for perfecting the appeal; that the bond given has only one surety, while the statute requires two or more; citing ¡¡cebe v. Yount/, 13 Mich. 221.
    2. That Hupreme Court Rule No. 14, which provides that the appellant shall, within 20 days after perfecting his appeal, give written Notice of such appeal and of the day when the appeal bond was filed, which notice shall be served on all the other parlies, whether joint or adverse, who have appeared in the cause, was not complied with; that the ease of Tucker v. Etone, !)2 Mich. 298, whore it was said that the “delay in serving notice of perfection of appeal, which is another ground urged for the dismissal of tin* appeal, has been of no hurt or damage to complainant, and is not sufficient, in and of itself, to warrant a dismissal,” does not rule this case; that the defendants in this case have been damaged by the delay and the failure to observe the. plain provisions of 1 low'. Kt at. § 6738, in regard, to filing a bond; that complainant has been for four years and a half and still is in possession of property which the. court below found to he the defendants’; that she pays no rent, and defendants have no surety for any rent of the premises, as shown by the affidavits filed in support of this motion.

      Arthur Jones, contra, contended:
    1. That the merits of the case will not be considered on this motion, and the financial responsibility of the complainant does not affect the question of the regularity of the appeal.
    2. That the appellees did in reality have a hearing on the approval of the appeal bond, though not on the notice provided by the statute; that they do not object to the penalty in the bond, or that the surety is financially irresponsible, but invoke the technical rule as to notice to drive the complainant out of court; that it this were a motion under the statute for an additional bond this court would, if it found the bond given insufficient, order an additional one to be given under 2 How. Stat. § 6738, subd. 3.
    3. That it the court regards the want of notice such a disregard of the practice as requires attention, leave is asked to present a new bond; citing MeOlintock v. luting, 1!) Mich. 300; that under How. Stat.' §6738, the bond having been approved by a circuit court commissioner, the appellee could move the circuit court, or the j udge at chambers for an additional bond, but they have delayed doing so for 122 days.
    4. That the rule does not require a separate notice of perfecting an appeal; that it is perfected by filing the claim for appeal, giving the bond, duly approved, and serving- copies of the claim and bond with notice of tlioir filing, and that they are copies, and this is a sufficient compliance with the rule, but an appeal will not be dismissed for failure to give notice; citing Ga/rratt v. lAtehfield, 10 Mich. 451; Ebook v. Proctor, 26 Id. 283; Tuelcer v. Etone, 92 id. 298.
   The facts as alleged by the respective parties were as follows:

On the part of the defendants it was alleged:

a--That on the commencement of summary proceedings to recover the possession of certain premises occupied by complainant, but the title to which was in the defendant John Campbell, the complainant filed her bill, in which she claimed to be the owner of said premises, and, without filing any bond, secured an injunction restraining the further prosecution of said summary proceedings and the institution of any other action at law for the recovery of the rents or profits or the possession of said promises.

b — That on July 16, 1895, a decree was made dismissing said bill; that the occupancy by complainant of said premises has continued since tiie bill was filed, and still continues; that the defendant Campbell has received no rent or income therefrom during such occupancy, and that complainant is pecuniarily irresponsible.

a — That no notice of an application for the approval of the appeal bond, signed by John Torrent as sole surety, or for fixing the penalty of said bond, was served upon the solicitors for the defendants; that said solicitors did not appear before the circuit court commissioner, who approved said bond and fixed the penalty thereof, and were not heard as to the pecuniary responsibility of said surety; that no notice, under Supreme Court Rule No. 14, that said appeal had been perfected, was served on the solicitors for the appellees.

On the part of the complainant it was alleged:

a — That the property involved in the suit belongs to complainant; that defendant John Campbell is a brother of complainant; that he acted for her in the purchase of said property, and took the title in his own name, without her consent or knowledge, and that he has no equitable interest in said property; that said Campbell commenced proceedings to recover possession of said property, as stated by defendants, and that complainant instituted this suit for the purpose of establishing the legal title thereto in herself; that said property is the home and residence and homestead of the complainant; that the defendants have never demanded any rent of complainant for the use of said property, and that she is not now,nor ever has been, a tenant of said defendants, or of either of them.

b — That the record in this case is nearly all printed, and that the complainant expects to be able to file it within the time limited by the rule, and to have the case heard at the next regular term of this Court.

c — That the delay in presenting the appeal bond for approval was caused by

the poverty of the complainant; that after her solicitor had prepared the bond he secured its execution by John Torrent • as surety; that said surety is worth half a million dollar's; that said solicitor then handed the bond to the circuit court commissioner, and requested him to see the defendants’ solicitors, and ascertain if it was satisfactory to them; that a short time afterwards said solicitor was informed by the commissioner that he had seen one of defendants’ solicitors, who objected to the bond on the ground that it should be conditioned for the payment of the rental value of the premises from the time the bill was filed; that the penalty .should be $1,500, and that no other objections were made to said bond; that the said commissioner heard defendants’ attorneys fully as to their claims; that complainant’s solicitor contended that the condition of the bond was as prescribed by law; that as defendants did not ask for a decree for rent, and never presented any claim for the same in the case, the court would not make such a decree; that to require such a bond as was asked for would not only be contrary to law, but would render it impossible for complainant to appeal, and thereupon the bond was approved, and that by virtue of the proceedings stated the defendants’ counsel did, in effect, have a hearing before the commissioner, although not strictly in accordance with the statute.

cl —That on October 26,1895, complainant’s solicitor caused a copy of the appeal bond, order of approval, and order fixing the penalty thereof, together with a copy of the claim of appeal, all attached together, with notice of the filing thereof, and all duly certified to, to be served on the solicitors for the defendants, which service was equivalent to the notice required by Supreme Court Rule No. 14.


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    Caroline Kirt v. Mary Kropp.
    Brief-Service of by appellant.
    Motion to strike ease from docket for failure of appellant to seasonably serve copy of brief. Granted.

      Alexander McKircJier, for motion.

      M. B. Pulcipher, contra, contended:
    1. That under the rule the appellant’s brief should be served at least one full day before the case is placed on the calendar for hearing; that in this case a copy of said brief was served upon the attorney for the appellee on April 11, 1896, which was a sufficient service; citing Powers Practice, 276.
   The facts as shown by the record and affidavits filed in support of the motion were as follows:

« — That the writ of error was issued September 80, 1895, returnable October 25,1895, and was returned December 31, 1895, on which day copies of the printed record were filed.

6 — That the case was noticed for hearing for the April term, 1896; that copies of appellant’s brief were filed April 11, 1896, on which day a copy of said brief was served upon the attorney for the appellee.


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    Lewis Waterman et al. v. Clement Smith, Circuit Judge of Calhoun County.
    Case — Settlement of — Under Act No. lse, Laws of 1805.
    Relators applied for mandmms to compel respondent to settle and certify to the evidence in a chancery case in narrative form under Act No. 186, Laws of 1895, notwithstanding the decree sought to be appealed from was entered prior to said act taking effect. An order to show cause was denied.

      Mains d¿ Mains, for relators, contended:
    1. That under the decision in Beebe v. Barkett, 65 N. W. Rep. 970, the provisions of'said act should govern on the settlement of the case, even though the decree was entered before said act became operative.
    2. That said act provides that in all cases, whether the cause shall have been tried in open court or the testimony shall have been taken by deposition or before a circuit court commissioner,— either party shall be entitled to make and settle a case setting forth in substance all the evidence taken or read at the hearing, following as far as practicable the making of cases for review at law, before the judge who tried the case, afr such time and in such manner as is now provided by rule for the settlement of bills of exceptions in cases at law.
    3. That Circuit Court Rule No. 85, as amended and ordered to take effect September 1,1895 (102 Mich.) provides that the bill of exceptions shall contain such parts of the testimony only as are necessary to present the questions of law raised, and shall be in narrative form unless the trial court shall determine it necessary to a full understanding of the questions that it be set out by questions and answers.
   The facts as alleged in the petition for mandamus. were:

« — That a decree was entered against the relators prior to the taking effect of Act No. 186, Laws of 1895.

6 — That on March 25, 1896, a motion for the settlement of the case under said act was submitted to the circuit court for the county of Calhoun, in chancery; that on April 1, 1896, respondent made an order, in which he stated that where there is contention about the evidence, as in this case, he felt it was better to settle the case upon the whole record, as presented to him; that upon presentation of said record at the next session of the court on April 10,1896, he would sign it as a settlement of the ease.


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    The Tobacco River Milling and Manufacturing Company v. Peter F. Dodds, Circuit Judge of Clare County.
    Injunction — To restrain proceedings FOR COLLECTION OF JUDGMENT.
    Relator applied for mandamus to compel the respondent to dissolve a preliminary injunction restraining the collection of a judgment at law. An order to show cause was denied.

      C. W. Perry, for relator,' contended:
    1. That relator bases its claim to relief solely on the grounds that the injunction was granted without notice, and that there is no equity in the bill.

      2. That the bill sets forth the defense that complainant made as defendant in the suit at law, and shows it to have been a proper legal defense; that complainant does not claim that he was not allowed to make said defense; that on the contrary it was made and decided against complainant, and he simply seeks by said chancery suit to be relieved of the judgment at law; that complainant does not claim that he made a mistake in the claim he made in the suit at law or that he could not or did not make said defense as he wished to; that the court should not enjoin the collection of said judgment unless the bill showS some reason why the rights of the complainant were not litigated in the suit at law.
    3. That complainant claimed on the trial that he did not write anything on the subscription paper containing subscriptions to the capital stock of the relator after his name except the word “fifty,” while, as shown by said paper, the word “shares” follows said word; that complainant denied writing the word “shares;” that relator joined issue on said denial; that this question of fact was submitted to the jury, and they found against complainant; that had complainant claimed that he wrote the word “shares” by mistake, he would have had an equitable defense, and might have invoked equitable relief; that he makes no such claim in his bill, hence there is no equity in the bill, and the injunction should be dissolved.
    4. That relator does not desire an order to show cause unless the Court is impressed with the idea that a writ of mandamus should issue unless the respondent is able to show by his return some reason, not apparent upon an examination of the pleadings, why the injunction should be retained.
   The facts as alleged in the petition for mandamus were:

1. That on September 18, 1895, the relator recovered a judgment in the circuit court for Clare county against Robert-M. Mussell for $538 damages, and costs taxed at $24.85; that proceedings on said judgment were stayed to enable the defendant to move for a new trial, or settle a bill of exceptions; that during the life of said stay a motion for a new trial was made and denied, and that no bill of exceptions was presented for settlement or settled.

2. That on February Í3, 1896, the defendant filed a bill on the equity side of said court, charging:

a — 1That the relator (defendant in said equity suit) recovered said judgment upon a subscription claimed in its declaration to have been made by the complainant to its capital stock, and which the complainant refused to pay, said subscription being in writing as follows:

“R. M. Mussell, fifty shares, $500.”

1> — That complainant (as defendant in said action at law) gave notice under his plea of the general issue that he would show that if the subscription paper set out in said declaration purported to show that complainant subscribed $500 for the stock of the relator it was without sanction on his part, and such entry was made'by some one other than the com-I)lainant;that the only amount complainant ever subscribed to the stock of relator was $50, which amount he stood ready to pay, and tendered to the relator.

e — That in the spring of 1892, the secretary and manager of relator solicited a subscription from complainant to its capital stock; that complainant informed said solicitor that he did not desire any of said stock, but that he would give $50 to aid relator in the erection of its flouring mill; that finally complainant signed his name to a subscription paper, thereby and thereon agreeing and intending to pay to relator $50; that some weeks afterwards complainant was informed that said solicitor was reporting that complainant had subscribed for fifty shares of relator’s stock; that complainant demanded of said solicitor that he at once cease making such statement; that if the subscription paper in any manner indicated any such subscription to at once bring it to complainant for correction according to the facts as hereinbefore stated; that said solicitor admitted that complainant was correct in such statement, and agreed to bring in said subscription paper for correction, all of which he neglected to do.

d — That complainant never signed for any number of shares of stock on said paper, nor did he ever authorize any one else to sign, the word “shares” after the word “fifty” as written by him on said paper; that if the word shares is so written on said paper it was written either by some person not authorized by complainant, or, if so written by complainant, it was so written without his agreeing, meaning, or intending to do so, and through misapprehension, error, and mistake on Ms part; that said paper should be corrected and reformed in that regard, and the word shares, so far as it applies to complainant, should bo stricken from said paper.

4. That upon the filing of the statutory bond a preliminary injunction was granted ex parte restraining relator from collecting its said judgment.

5. That relator filed an answer to said bill, in which, after admitting the. allegations of the bill as to the soliciting of subscriptions to relator’s capital stock, relator denied that complainant informed its solicitor that he did not wish any of said stock, but would give $50 to aid the relator in its enterprise, or that when complainant signed said paper he agreed to pay the sum of $50 to relator, as also all otherc barges in said bill to the effect that said subscription was unauthorized, or was not intended by complainant to be what on its face it purported to be, namely, a subscription for 50 shares of the capital stock of the relator, and denied the right of the complainant to the relief sought.

That said answer alleged that on the trial of said action at law the complainant was sworn in his own behalf, and testified that he did not write the word “shares” after the word “fifty” following his name in said subscription paper; that he wrote nothing after the word “fifty;” that the word “shares” was written by some person to him unknown, and that the same was a fraud upon him, which averments were supported by the affidavit of the court reporter; that an issue was thus raised on said trial as to whether or not complainant wrote the word “shares;” that the case was twice tried and submitted to the jury upon that theory; that said issue and defenses were raised by complainant himself, he claim* ing that the same could be raised in a suit at law; that said defense is one which should be made at law and not in equity; that said issue having been raised by complainant, and judgment having been had thereon, complainant cannot now raise the question of the signing of said subscription paper in a suit in equity begun for that purpose.

(!. That relator moved the court on bill and answer to dissolve said injunction, which motion was denied.


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    Detroit Sulphate Fiber Company v. George S. Hosmer, Circuit Judge of Wayne County.
    Jur y — Special questions — Changing answers AFTER RENDITION OF VERDICT.
    Kelator applied for mandamus to compel respondent to correct the record by striking out the word “no” and inserting the word “yes” as the answer of the jury to a special question submitted to them. An order to show cause was denied, error being the proper remedy.

      De Forest Pane, for relator:
   The facts as alleged in the petition for mandamus were:

a — That the relator was defendant in a personal injury case; that the jury rendered a general verdiet in favor of the plaintiff, and answered four special questions submitted to them; that thereupon the attorney for the plaintiff sought to discuss to the court, in the presence of the jury, the answer to the fourth question, which he claimed was inconsistent with the answer to the third question; that the respondent stated that plaintiff’s attorney could poll the jury on any portion of the verdict he saw fit; that plaintiff’s attorney requested respondent to satisfy himself that the jury understood the question the same as respondent did; that respondent declined to do this, and discharged the jury from the further consideration of the case.

b — That further discussion ensued between the respondent and both attorneys; that finally the jurors were recalled and the clerk was ordered to poll the jury as. to the fourth question and answer; that sight of the jurors affirmed the answer as given to be correct; that the ninth juror, after hearing the question read, stated that it was different from what he had understood it to be; that the jury were sent out, and upon their return, respondent, after stating that he had been informed that the jury could not read his writing, read the third and fourth questions to them, after which they again retired, and on their return rendered the same general verdict, but changed the answer to the fourth question from yes to no, thereby making the answers to the two questions consistent with each other, after which the jury were discharged.

c — That a motion to correct the reeord as now asked was made and denied.