text:
    James A. Dyer, Plaintiff in Error, vs. Lovinus Montieth, Defendant in Error.

      /l writ of certiorari made returnable on a day other than as prescribed by C. O. Rule 13, may be «mended by the clerk, or under his direction, at any time before service ; and if not so amended such amendment may be made by the Court, after motion to quash the writ for irregularity.

      Allegan Circuit,

      March, 1870.
    Motion to quash a wrii of certiorari.

    The writ in this case was issued on the 28th day of February, 1870, returnable on the 5th day of March following. After the writ was issued, the attorney for the plaintiff in error, J. V. Rogers, so changed the writ as to make it returnable March 1st. In support of the motion, the affidavit of the justice was submitted, setting forth that the change referred to was made after the service oí the writ upon him. The counter affidavit of Rogers sets forth that at the time of issuing the writ, the clerk said to him that, he was not certain that the return day mentioned in the writ was in accordance with the rule, requesting him (Rogers) to investigate, and to make any correction, in this respect, which might be required. In thisr Rogers was corroborated by the affidavit of the clerk. Roger» further swears that the change was made while the writ was i» his possession and before it was served upon the justice.

      Stafford & Padynm and F. J. Littlejohn for the motion.

      J. L. Sawn, contra.

   By the Court,

Brown, J.

By Circuit Court Rule 13, “ all original writs (except capias) may be issued in vacation or term time, and made returnable on the first Tuesday of any month, and, also, on any day in term.” The filth of March was not a day in term.” The first of March was the first Tuesday in that month'. § 4421, C. L., provides that ‘no process, pleading or record, shall be amended or impaired by the clerk or other officer of any Court, or by any other person, without the order of such Court, or some other Couit of competent jurisdiction.”

The process of the Court becomes operative, as to the person to whom it is addressed, from the time of its service, and I think an amendment like the one complained of, made by the clerk or by a person acting under his instruction at any time before service is not in violation of this statute, and would not, of itself, invalidate the writ; but on the contrary, by making it conform to the rule, if the writ W'as not absolutely void, vitalized and perfected what was before irregular. Without the order of the Court, no valid amendment could be made alter service, and any such amendment would b.e a mere nullity, and the justice would not be bound to regard it. In this case, whatever may be the facts in relation to the amendment, the justice has made his return. If the facts are as claimed by the plaintiff in error, I think there is no such irregularity as will-warrant the granting of this motion. If the facts are as claimed by the defendant in error, is the writ void ? If not void, but irregular, merely, ought the writ to be quashed, or should the .Court direct the same to be amended. Formerly, judges were very reluctant to grant amendments of any kind, but the strictness of this rule has been of late years much relaxed. Wliile strict practice should be insisted on, mere mistakes should not be permitted to defeat justice, where it is within.the power of the Court to correct such mistake ; and it is believed that amendments should be allowed when they tend to the furtherance of justice. Of course, if a writ or other process is void there is nothing to amend ; and a process or writ is said to be void when there was not any authority for issuing it. Irregular process is that which has been illegally issued, or not issued in accordance with the rules of law. Assuming the facts in this case to be as claimed by the defendant in error, the writ was irregular. Being irregular and not void it may and should be amended. The interlineation and change made by the attorney, if before service, was, under the circumstances, proper ; if after, as may be assumed for the purposes of this motion, his act was a mere nullity. The motion must be denied with costs, and the amendment may be considered as now made, and as the act of the Court.

For authorities bearing upon this question, see 1 Cowen, 38, 41; 1 Caines, 486; 2 Johns., 309; 2 Wend., 258; 9 Johns., 386, and cases cited.


source: Caselaw Access Project

author: Brown, J.

license: Public Domain

text:
    Benjamin Youmans vs. Lewis Padden.
    1. Where the driver of a carriage used for the conveyance of passengers for hire, leaves the horses attached thereto, while any passenger remains in or upon the same, without making such horses fast, or without some suitable person to take the charge or guidance of them, is, notwithstanding the gentle and steady habits of the horses, guilty of culpable negligence; and when in such case the team runs off, and a person in attempting to leap from tno carriage is injured, with ut such negligence on his part as to amount to a fault» the driver and owner, or either of them, are liable for the damages sustained.
    2. Common carriers of passengers are bound to use the utmost care and diligence of cautious persons, to prevent injury to passengers.
    3. In such a case, the question is not whether the injury would or would not have been occasioned had the injured party remained in the carriage, but to defeat his right to recover, on the ground'that he contributed to the injury, it must appear that in escaping from the carriage he acted In view of all the circumstances unreasonable, and that such unreasonable conduct contributed to the injury.

      4. In fh?8 class of cases, tlie injured party is entitled to recover for loss of time, expenses incurred, and where the injury is permanent, prospective damages.
    5. Whore a person is injured, by reason of the negligence of another, it is hls duty to take ordi - nary care of the injured part, and where the injury is serious, to employ a surgeon of average skill and information in his profession.
    6. Where, in such case, the plaintiff employs a surgeon of average skill and he honestly and faitlilully discharges his duty, but errs in judgment and amputate» an injured limb, it will not avail as a defense in an action against the person through whose negligence the inlury was occasioned, that the limb might have been saved by the exereise of the highest degree of skill.

      Allegan Circuit,

      March, 1870.

      G. P. Doan, for Plaintiff.

      J. F. Alley, F. J. Littlejohn and Arnold & Stone for Defendant.

    The facts sufficiently appear in the charge.
   Charge to the Jury,

Brown, J.

Gentlemen oe the Jury : This is an action brought by the plaintiff to recover damages which he alleges he has sustained by reason of the negligence oi the defendant, in and about tbe management of a span of horses attached to a passenger carriage or omnibus used for carrying passengers for hire, about the first of November last, at the village of Allegan.

There are certain facts in this case about which there appears to be no controversy :

First, the defendant gave or handed to the plaintiff an omnibus ticket — in other words, solicited the plaintiff to take passage in the omnibus.

Second, the defendant, after the plaintiff had taken a'seat in the omnibus, at the Allegan House, took charge of the conveyance and drove the same to the Exchange Hotel, and there left the omnibus with several passengers therein, among whom was the plaintiff, without hitching his team or leaving any one in charge ot them.

Third, the team started off down the street without a driver, while the defendant was in the hotel.

Fourth, the defendantin getting out of the omnibus, while in motion, received an injury to his thumb, by the swinging together of the omnibus door.

Fifth, the plaintiff has since had his thumb amputated .

In respect to these things, I believe there is no controversy.

On the part of the plaintiff, he claims that after it was discovered that the horses were without a driver, the passengers commenced getting out of the omnibus ; that he was next to the last to alight; that the team appeared to be going rapidly ; that the swaying of the omnibus indicated that the horses were running, but that the night was so dark that he could not tell whether they were really running or not.

The plaintiff lurther claims, that a few days after his return to Mendon, where he resides, his hand or thumb became so swolen, inflamed and painful that he was induced to apply to a physician. He fixes the time of such application at four days after the injury. Dr. Clapp, who attended him, thjnks that the plaintiff first called upon him for treatment for his hand about the 10th of N ovember, but says the time may have varied either way. You have heard the testimony of JDr. Clapp as. to his treatment of the injured hand, and as to his general treatment of the plaintiff, who, he says, was very much debilitated, and whose debility he ascribes to the suffering occasioned by the injury complained of. The plaintiff claims that by reason of this injury, he has been unable to labor from that time to the present. He has given evidence tending to show the value of his time which he claims he has lost, and of the expenses he has incurred by reason of such injury.

On the part of the defendant, it is claimed that he has not been guilty of negligence; or, if guilty of negligence, the plaintiff contributed to the injury, and that he is not, therefore, entitled to recover. The defendant further claims that after the occurrence of the accident, the plaintiff was negligent as to the procuring of the services of a surgeon, and that the surgeon when procured did not treat the injured hand with that degree of skill which was requisite in such a case. The defendant further claims that, under the pleadings, it is incumbent upon the plaintiff to' show that the defendant was not only the owner of the team and omnibus, but that he was a common carrier of passengers ; and it is claimed that this showing has not been made.

Questions often arise as to the right of the plaintiff' to recover, where he has been injured by the negligence of the defendant, coupled with some degree of negligence on his part. The general rule in such cases is, that a party is not entitled to compensation for his injury, if he, ‘ by his own or his agent’s ordinary negligence, or willful wrong, contributes to produce the injury of which he complains; so that, but for his concurring and co-operating fault, the injury would not have happened to him.”

It is not essential to a defense in this class of cases that the plaintiff should have been in any degree the nuisr of the act by which he is injured. It is enough to defeat the.plaintiff, if the injury might have been avoided by his exercise of ordinary care. The question to be determined is not, whether the plaintiff’s negligence «i#W, but whether it contributed to the injury he complains of.

It is contended, on the part of the plaintiff, that the defendant was a carrier of passengers. Of-course, this must affirmatively appear by the.proofs, in order to apply the rules o f law which, I shall state to you as touching ones’ liability as such carrier; and in determining this question it is competent for you to do so from positive testimony or evidence upon that point, or from facts and circumstances as developed at the trial by the evidence,

In the first place, was the defendant negligent? As there is no dispute as to the alleged fact that the defendant left his horses at the Exchange Hotel, unhitched and unattended, while passengers were within the coach, I advise you, that no matter what his custom was, or how gentle his team had been, in view of § 1507, C. L.. making it unlawful to thus leave a team, the defendant must be deemed guilty of culpable negligence. Notwithstanding this, I am not prepared to say to you that the plaintiff would be excused from using ordinary care to prevent an injury to his person; but, on the contrary, I think he would be required to use such ordinary care. By, this, you must not understand me as saying it was the duty of the plaintiff to remain in the coach, on a dark night, when he had ascertained that there was no driver on the box ; but, I leave it for you to say, whether it would become a prudent man, under such circumstances, without knowing where the carraige was going, or what would become of it the next moment, to longer remain ; or, whether it was the plaintiff’s duty to escape as soon as possible. A passenger is not to be deemed guilty of contributory negligence when he only takes such risk as, under the same circumstances, a prudent man would take. The question is not whether he would have been injured if he had remained in the coach. The law does not require a passenger to be endowed with foreknowledge, nor does it require him, in the hour of apparent imminent danger, to sit down and philosophise or speculate upon the chances of his escape from injury by adopting this or that course.

The question is, did he act unreasonable, in view of all the circumstances, and were his acts so unreasonable as to amount to a fault on his part, which contributed to the injury. If not, and if you find for the plaintiff" upon the other alleged facts, to which I have called your attention, your verdict must be for the plaintiff".

Much has been said as to the duties of carriers of passengers. Upon this point, I advise you .that common carriers of passengers are bound to use more than ordinary care; i. e., more than such care as is used by very cautious persons even; and if a passenger receives an injury which any reasonable care and skill could have prevented, the earner is liable therefor. 49 Maine, 279; 5 Duer, 193; 4 Iowa, 547; 13 Cal., 599; 11 Grat., 697; 2 McLean, 157: 4 Green, 555; 13 Com., 319. They are bound to use the utmost care and diligence of cautious persons to pre* vent injury to passengers

If you find the plaintiff" entitled to recover, the next question will be as to the amount, and upon this point I advise you that you are not to award damages by way of, or as a punishment to the defendant If liable, he is to be held to answer in such sifm as will conpensate the plaintiff for the loss he has sustained by reason of the injury — for such damages as were the natural and proximate result of the injury; and in determining that, you may consider the plaintff’s loss of time, the suffering he has endured, the expense he has necessarily been put t >, and whether he has sustained a permanent injury; and in case you find he has sustained such permai oat injury by reason of the negligence of the plaintiff, without fault on his part, or the person employed as a surgeon, you may allow him such damage for such permanent injury as you shall think it reasonably certain he will suffer in the future. 18 Ill., 416; 20 Id.. 235; 18 N. Y., 534; 20 Barb., 282; 36 N. H., 9; 20 Ill., 544.

It is proper to consider another question which has been raised by the defendant’s counsel, and in relation to which testimony has been given. It is, as to whether the plaintiff has, since the injury, about which he complains occurred, used and resorted to proper means to prevent the aggravation of the injury — whether the thumb which he has lost might, with proper care, have been saved. In determining this question, I advise you that it was the duty of the plaintiff to take ordinary care of the injured hand ; and to procure suitable surgical aid ; and by this I do not mean that it was his duty to employ the most skillful surgeon, or that the surgeon should use the highest degree of skill which the profession could master. The rule in this respect is, that the skill to be used and exercised by a surgeon, is, that he must come up to the average standard, and must be judged by its tests, and in the light of the present day. Shear, and Red. on Neg., § 437. A physician, like an attorney, is not answerable in a given case for the errors of an enlightened judgment. 19 Pick., 333; Shear and Red.on Neg., § 440. If Dr. Clapp possessed an average qualification in his profession, and faithfully and honestly exercised his judgment in treating the plaintiff, the plaintiff could not sustain an action against him for negligence; and this being so, the defendant in this case could not set up a defense or claim a reduction of damages on account of such treatment or want of treatment. The rule would be otherwise if Dr. Clapp did not possess the knowledge and skill which I have indicated as being requisite, and if by reason of such want of skill or care the plaintiff lost his thumb. In such case, the defendant should not be held responsible for the negligence of the surgeon, but only for the natural results of his own wrong.

It is contended on the part of the defendant that the plaintiff did not apply to a surgeon within a reasonable time after the injury, and that by reason of such neglect he contributed to aggravate the injury. The question is not, could he have saved the thumb by applying at once to a surgeon, but the question is, was his negligence such as to amount to a fault; and in determining this question you will look at his surroundings and the condition of the injury. Did he know or have good reason to believe that a bone was broken. If so, what did ordinary prudence require him to do ? If he did not know that the bone was fractured, did he act as a man of ordinary prudence would under like circumstances. These are some of the questions you are to consider in passing upon this branch of the defense.

It devolves upon the plaintiff to establish his right to recover by a preponderance ’ of evidence. By this, I do not mean that he must necessarily have a greater number of witnesses than the defendant. You are not to weigh testimony as you would merchandise. It cannot be measured or counted like produce. Each juror should ask himself honestly, in view of all the evidence in the case, “ What are my convictions, and what do I believe in relation to the case ? ’’ You are to judge of the testimony of witnesses from their appearance on the stand; their apparent interest or anxiety in the result of the case; the probability of their statements ; whether alleged facts about which a witness testifies are natural or probable, or whether the statements appear exaggerated and unreasonable. These are some of the tests you are to apply in weighing testimony. * * *

Verdict for plaintiff for $155.


text:
    Fred. Snowbill vs. Alanson Case and Homer G. Case.
    Where judgment Is rendered upon two instruments, bearing different rates of interest, the journal entry should show the amount due and the rate of interest upon eacb

      Allegan Circuit,

      March, 1870.
    Suit was brought upon two promisory notes, 6ne drawing interest at seven per cent, and the other at ten. At the time of assessment by the clerk, Mareh 31st, 1870, for judgment, there was due upon the ten per cent, note, with accrued interest, $262.78 ; on the seven per cent, note $197.28, making $460.06, for which judgment was asked. What rate of interest shall the judgment bear ?

      F. J. Littlejohn, for Plaintiff.
    Defendants defaulted.
   Brown, J.

The statute, § 1317 C. A., provides that the judgment shall bear the same rate of interest as the instrument sued upon, not exceeding ten per cent. In entering the judgment upon the journal, let the following appear : “And the damages of the said plaintiff on occasion of the premises having been duly assessed at the sum of four hundred and sixty dollars and six cents, one hundred and ninety-seven dollars and twenty-eight cents of said amount bearing interest at seven per cent, and the balance, two hundred and sixty-two dollars and seventy-eight cents of said sum, bearing interest at ten per cent., over and above his costs, and charges, by him about his suit in this behalf expendedso that when execution shall issue this recital may be endorsed thereon.


author: Patchin, J.

text:
    Martin Barrick and Elizabeth Barrick vs. The City of Detroit.
    Medical works should not be read to the jury. New trial granted on this ground, notwifft. standing no exception taken at the time.

      Wayne Circuit,

      March 1870.
    This was an action for damages occasioned by an injury received by plaintiff, Elizabeth Barrick, who is the wife of plaitiff, Martin Barrick, by falling into a large hole through the sidewalk, on one of the streets of the city of Detroit. It was claimed by plaintiffs that the injury caused a miscarriage within three months after the fall occurred. The defendant’s counsel read to the jury, as evidence, several passages of different medical works on the subject of abortion without objection from plaintiffs’ counsel, to show that the miscarriage did not result from the fall. The verdict was for plaintiff for $500. This verdict the plaintiffs declared insufficient, and afterwards moved to set aside for error in permitting these medical works to go to the jury as evidence. It was insisted that the introduction of this evidence had a tendency to diminish the verdict.

      Wilkinson & Post, for the motion
    cited 5 Carr. & P., 460; O’Brien, 7 R. I, 336; Commonwealth vs. Wilson, 1 Gray, State vs. 338, Melvin vs. Easley, 1 Jones Law (N. C.), 386, and Ashworth vs. Kittridge, 12 Cush., 193.

      J. P. WMttmore, contra,

    relied upon 2 Graham & Waterman on New Trials, and insisted that the error was waived by plaintiffs’ failure to object to the testimony, when offered.
   By the Court,

Patchin, J.

This is a motion for a new trial upon the ground that the Court erred in' permitting the introduction of medical works as evidence on the part of the defefendants, although not objected to. There can be no question that the medical books should not have been admitted. They are, at best, the unsworn statement of a party not present, and not liable to a cross-examination, which might vary, or perhaps entirely change, the meaning and purport of the statement of the author, as applied to the particular case at the bar. Medical writers are by no means a unit upon the various questions of medical jurisprudence. A passage may be found in some work favorable to a particular opinion, which in another may be successfully controverted and overthrown, although not known to counsel or the Court, who are not presumed to be particularly versed in that braneh of science, and, therefore, the counsel should have the opportunity of eliciting from an expert upon the witness stand, that peculiar information which he alone is supposed to possess, and which would be imparted in language easily understood, and not in those technical terms so common in medical books, where even common words are sometimes used in a peculiar manner, distinct from their received meaning in the general use of the language.

But it is claimed by the opposing counsel that the evidence was admitted without objection on the part of the plaintiff, and therefore it is now too late to avail himself of the benefit of an en or. That the plaintiff cannot now claim relief as a right, is quite clear ; but I am not prepared to adopt the opinion, that when, in perfect good faith, a question is asked and allowed to be answered without objection, which is afterward ascertained to be error, there can be no relief.

The granting or refusing a new trial is largely in the discretion of the Court. The motion is generally heard and considered with much more deliberation than can possibly be achieved in the haste of a trial ih a nisi prius Court, where questions entirely new to both counsel and Court are frequently raised and bj necessity passed upon at once, without that due deliberation which they would receive in a motion for a new trial.

To adhere strictly to the rule laid down in some of the books, that there can be no relief on a motion for a new trial by reason of error not excepted to during the trial, would, it seems to me, encourage the very cumbersome and embarrassing practice of taking frivolous and unnecessary exceptions, so that upon further examination, if it should be found that an error had been made, their rights would not be lost in regard to it.

Great care should be exercised on the part of Courts that the utmost good faith should be observed on the part of counsel during the trial of a case.

And in all cases of such good faith it is not by any means clear that within a reasonable time it is not too late to correct an error, that justice may be done, either upon a motion for a new trial or otherwise, even though an exception was not taken at the time. • I find myself brought to this conclusion, that there may be cases (of which the case at bar is one) in which an error may be taken advantage of on a motion for a new trial without previous exception being taken. The motion for a new trial is therefore granted with costs to abide the event of the suit.


author: Turner J.

text:
    Square Trumble vs. David W. Square.
    The N. E. of a section of land was assessed, as appeared by the assessment roll, as follows:
    N. E. of N. E. —38.80-ll)0th acres — valuation $ 75.
    N, W.^ofN, E. 39.21-100th acres — valuation 75.
    S. ^ofN.E. % 80 acres — valuation 150,
    The tax roll described the land as the N. E. % — valuation $800 — and the whole quarter section was sold by the Auditor General in one parcel. Held, that this is ouch a departure from the Statute, S. L. 1859, p. 37, as to render the sale void.

      Held further, that a party claiming under an Auditor General’s deed, made upon such sale, is not entitled to a judgment tor “the amount he has paid for the land, with interest and costs.*

      Newaygo Circuit,

    February, 1870.
    Plaintiff brings ejectment to recover the N. E. fractional quarter of section 6, in township 11 north, of range 14 west; and to prove his title introduced in evidence a patent from the United States to Ignatius Taylor, and also a waraDtee deed from Taylor to himself
    The defendant read in evidence a deed from the Auditor General to himself, dated- December 29th, 1862, for the taxes of 1860.
    The plaintiff then introduced in evidence the original assessment roll for the year 1860, by which it appears that the laud was assessed as follows:
    N. E. J of N. E. J — 38.80-100th acres — valuation $ 75.
    N. W. £ of N. -E. ¿ — 39.21-100th acres — valuation 75.
    S. £ of N. E. ¿ —80 acres — valuation 150.
    The tax roll was also in evidence, showing that the Supervisor in making it, did not describe the land as in assessment roll; but as the N. E. J — valuation $300 — and the whole quarter section was sold by the Auditor General in one parcel.

      Rowell & Gray for Plaintiff.

      Standish cfc Fuller for Defendant-
   By the Court,

Turner J.

The statute provides that the Supervisor shall deliver to the Township Treasurer a copy of the corrected assessment roll, with the taxes for the year, annexed to each valuation. — (S. L, 1859. p. 37.)

This he did not do. But the way he did copy it, would make each description as assessed liable for the taxes upon the whole quarter section. This is clearly such a departure from the statute as would render the tax illegal, and the sale of the Auditor General void.

But it is claimed on the part of the defendant, that if he has not acquired a title under his tax deed, he is still entitled to a judgment for the amount that he paid for the land with interest and costs. It is true that the statute, (S. L. 1865, p. 374) says that “ if any conveyance made by the Auditor General, pursuant to a sale made for the non-payment of taxes, shall prove invalid for any cause other than such as are enumerated in section three, the lien thereon for ¡State, County and Township taxes, or for either of them, or for any portion of either of them which may have been rightfully/ assessed, shall not be discharged thereby, but shall remain in full force, and shall be transferred by said deed to, and vested in the grantee therein named, his heirs and assigns ; and the owner of such land shall not thereby be acquitted from the payment of the taxes for which the same was sold; but the party to such action or controversy, holding or claiming title under such Auditor General’s deed shall be entitled to judgment or decree in the same action against the adverse party lor the sum of all taxes paid, with interest snd costs, &o.”

In order to entitle the defendant to a judgment lor the amount that he has paid for the land, with interest and costs, the State must have acquired a lien upon the land that could be transferred to him. And in order to acquire this lien, the taxes must be rightfully assessed; and in order that they be rightfully assessed, there must be a substantial compliance with the statute, at least “ the taxes for the year must be annexed to each valuation.” ■

The tax is unquestionably illegal and void for other reasons which it is not necessary to notice under this view of the case. Hart vs. Henderson, 17 Mich, 218.

I think the plaintiff is entitled to judgment.


author: Mitchell, J.

text:
    Abraham Wise vs. Samuel S. Gale.

      /kn Interlocutory decree referring it to a Circuit Court CommiHflioner, to take an account bo - twoon the parties, and directing the basis of the accounting, is final 20 far as it fixes such basis
    It is not erior for the Commissioner to overrule an offer of testimony tending t» change or modify that basis.
    •The Court will not recommit the Commisiiouor’s report except for manifest error, nor investigate the prools taken on the reference, with a view of ascortuinUg if it would arrive at the same, or a different conclusion from the Committsioner.
    Being free from error, the Commissioner’s report is to be treated as aspocial verdict or finding by the Court.
    Overruling the exceptions is equivalent to a confirmation of the report.
    Interlocutory decree controls the basis of the report and the final decree, and, upon review, is to bo trcatod, so far as a part of the final decree.
    jNotico for furthor directions is necessary to obtaining final decree.

      Macomb Circuit, in Chancery,

      March 1870.

      R. P. <& J. B. Eldrultjc, Complainant’s Solicitors.

      Hubbard & Crocker, Defendant’s Solicitors.
    Exceptions to Commissioner’s report.
    This case was originally heard beiore Judge Green, in 1807, upon pleadings and proofs, and a decree made by which it was referred to a Commissioner to take a mutual account between the parties who were co-partners, and directing the basis upon which the accounts should be taken, and especially how much; and the value of defendant’s services over one half (if any) of the whole time. And to report and direct the manner of payment of any balance found due either party.
    The Commissioner proceeded to hear the parties upon interrogatories and to take proofs, and reported the value of defendant’s services over one half his time at $250, and following the basis fixed by the interlocutory decree, reported an amount due the complainant and directed its payment in ten days after confirmation.
    At the hearing before the Commissioner, defendant offered proofs tending to show that the amount of capital stock and the amount inyoiced at dissolution, were different from the amounts fixed as the basis of the accounting by the preliminary decree which proof was rejected by the Commissioner.

      Both parties excepted to the report, and the case came on to*, be heard on the exceptions.
   By the Court,

Mitchell, J.

The interlocutory decree was: final, so far as it fixed the basis upon which the accounting wasf directed, and the Commissioner properly overruled all testimony tending to change or vary that basis.

The Court will not change or send back the report for recomputation, unless errors are clearly pointed out; nor go through* the proofs to see if the Court would arrive at the same or ar different conclusion from the Commissioner, it appearing that there was proof sufficient to sustain his report. Unless clear errors are shown, the Commissioner’s report must be treated as-a special verdict or finding by the Court.

All the exceptions are overruled, and the overruling of exceptions is equivalent to and a confirmation oí the report.

In order to obtaining a final decree it was necessary that m notice should be given for further directions.

The interlocutory decree is so far final as to control the basis oí the report and final decree, and for the purposes oí review must be held and treated as part oí the final decree.

Notice lor further directions required.


author: Mitchell J.,

text:
    The People vs. Charles E. Cantine.
    1, A proBecution for bastardy, undtr the Statute, is not a criminal proceeding,
    2. A preponderance of evidence,-in such a case, is all that is requisite in order to convict,

      Macomb Circuit,
    January, 1870.
    This was a prosecution for bastardy, under the Statute.
    After the testimony of prosecution was closed, the defendant was offered to be sworn as a witness on his own behalf.
   Mitchell J.,

held that it was not a criminal proceeding, and that the respondent might be sworn the same as in civil cases.

On a motion for a new trial this rule was confirmed and a new trial refused, because there was sufficient evidence for 2>rosecution if uncontradicted, and that though fully contradicted the jury had a right to weigh the evidence and give their verdict upon a preponderance, and the Court would not interpos» its judgment as to preponderance.


author: Ramsdell, J.

text:
    The People vs. Ransom N. Jones.
    <Peijury is complete as soon as the false oath is taken and the witness has been discharged. The Court befoie which the perjury caséis tried must determine the materiality of the testimony charged as false.
    'The pleadings in the case in which the false oath is taken need not be set forth in the information.

      Benzie Circuit,

      August Term, 1869.

      J. W. Young and G. S Pratt, for the People.

      Ramsdell t& Benedict and N. W. Nelson, for Defendant.
    T. J. Ramsdell, for defendant, moved to quash the iniorma tion :
    1. Because the case in which the perjury is alleged to have been committed has not yet been tried, and therefore the materiality of the testimony has not been determined by that Court.

      ‘2. The information does not set forth the pleadings in the .case in which the perjury is charged so that this Court can determine its materiality.
   Ramsdell, J.

The offense of perjury is complete as soon as the witness falsely testifying is discharged, and the People need not wait until the materiality of the false testimony is determined by the Court trying the case, before filing their information.

The materiality of the false testimony must be determined by the Court trying the perjury suit.

It is not necessary to set forth the pleadings in the information, the allegation that the question was material to the issue is sufficient, and being a necessary ingredient in the charge, must be proved on the trial.

Motion den ed.

Costs on Motion for New Trial.

Macomb Oivcuit*

Oidered, as a rule, that in cases of motion for a new trial, where overruled, it should be with ten dollars attorney lee, and otljer costs, except in special cases, this rule to apply to' the Circuit. Such costs to be taxed as part of the costs on judgment.


author:
Upson J.
      By the Court.

text:
    Romina Reed and Charles Reed, by their next friend, Hannah M. Reed vs. Mathew M. Fox and Ephraim J. Paddock.
    Under Rule 85, of the Circuit Court Rules, where a defendant suffers more than ten days to* elapse, after filing his plea of the general issue, without amending hie plea, his right to amend, of course, is gone, and if after that he files and serves an amended plea, with an affidavit denying execution of the note declared on, under Rule 79, which plaintiff's ’ attorney returns and refuses to receive, the same will on motion of plaintiff’s attorney be stricken from the files.
    A motion for leave to file such an amended plea and affiidavit, under rule 79, made after cause is on the Calendar for trial, and order made striking such amended plea and affidavit from the files for buch irregularity, based on affidavits merely denying the execution by one defendant, of the note declared on brief, setting up no reason for not having filed it under the Uule,come8 too late, and, if made seasonably, shows no sufficient excuse for noncompliance with the Rule.

      Branch Circuit,

      April, 1870.
    Assumpsit on note for $800, dated January 30th, 1866, payable in one year from date, with interest at 10 per cent., purporting to have been signed by the defendants individually. Interest endorsed thereon as paid June 30th, 1867, 1868 and 1869, in three endorsements. Declaration, with copy of note and endorsements, and notice of rule to plead, personally served on each of defendants, March 14th, 1870.
    Plea of general issue, with notice that defendant Paddock would show, in his defense, that he never signed or authorized any one to sign his name to the note, as described in plaintiff’s declaration, filed, and copy served, March 19th, 1870.
    April 2d, 1870, the defendants, without any leave obtained, filed an amended plea, being simply the general issue, with an affidavit denying the execution of the note by defendant Paddock, as under Rule 79. Plaintiff’s attorney returned said amended plea, with notice that it was refused, and that, on the first day of the next term, he should move the Court to strike the same from the files, as unauthorized under Rule 35.
    Motion made and submitted April 19th, 1870.

      D. Thompson, Plaintiff’s Attorney.

      Parsons & Pratt, Defendant’s Attorneys.
   By the Court,

Upson J.

Under Circuit Court Rule 85, (providing for amendments of course), as amended April 20th, 1860, it is provided that “ if the pleading be such as does not require to be answered, it can be amended under this rule only within ten days after filing the same.” The so-called amended plea” and affidavit having been filed more than ten days after the filing of the plea in this case, which did not require to be answered, comes within the prohibition in the Rule, and was filed without authority. The plaintiff’s attorney having returned it with notice of refusal to receive it, (20 Wend., 276, 680; 25 Wend., 699,) and also with notice of motion that the same be stricken from the files, is entitled to have his motion granted 1 Doug. Mich. R. 434.

Defendants’ attorneys thereupon, after order made striking amended plea and affidavit from the files, moved the Court, on affidavits denying execution of the note by Paddock, for leave to file affidavit on his behalf, under Rule 79, but without showing any reason why it was not filed with the plea.

By the Court.

The cause being now on the issue calendar for trial, and the party having being aware of his irregularity, the motion comes too late; but even if admissible, no excuse is shown for the omission.

Motion denied.


author: Upson, J.

text:
    Nancy Moore vs. Adam G. Mohney.
    Where animals are let for hire, the increase belongs to the hirer, unless it is otherwise agreed at the time the contract is made.
    A. let a farm to B. and by the contract, was, amongst other things, to furnish B, a team to work in carrying on the farm, and was also to furnish B. two or more cows to be kept by B.. and B, was to deliver to A, “ one-half of all the butter made from said cows.” Held, that B. was entitled to the increase of the cows during the term.

      St. Joseph Circuit,

      April, 1870.
    This was an action of replevin, brought by plaintiff against defendant for a number of young cattle.
    The plaintiff, by written agreement, dated March 26, 1866, leased her farm in Fabius township to the defendant, for the term of one year, commencing on the first day of April, 1866, and was to receive from defendant, two-thirds of all graiu, hay, and other produce raised on the farm. Farm was to be worked by defendant, and he was to work out all highway taxes that were payable in labor. Plaintiff to furnish all the seed to be ¡sown on farm, and plows, harrows, and other implements necessary to carry on the same, and pay all other taxes, and, also, to furnish defendant a team to be used in carrying on the farm, and feed for the same. Then follows in the agreement, this clause, viz: “ The said party of the first part,” (plaintiff,) “ further agrees to furnish to the said party of the second part,” (defendant,) “ two or more cows, which are to be kept by the party of the second part, and the party of the second part, further agrees to deliver to the party of the first part, one-half of all butter made from said cows.1’ Defendant went into possession of the farm unde.r the lease, April 1, 1866, and continued in possession under the terms of the lease by mutual consent, from year to year for three years, and, at the end of the three years, gave up possession to plaintiff, complying with all the terms of the lease, but taking with him all the increase of the cows during that time, being 2 cows, 2 heifers and 2 calves, which plaintiff replevied in this suit, claiming them to belong to her.

      S. O. Goffinberry, Attorney for Plaintiff.

      J. H. Lyon, Attorney for Defendant.
   By the Court,

Upson, J.

The written contract between the parties being silent on the subject of the increase of the cows during the term, the legal right to the same must be determined by the relation the parties sustained to each, other in respect to the cows during that time. The contract seems to make the defendant a bailee of the cows for hire. They were let to him as a part of the condition of the lease of the farm, and he was also bound to deliver to the plaintiff in consideration therefore, one-half of all butter made from the cows. He was not a gratuitous bailee. In a similar case in Vermont, where a man let his farm for one year, and by the contract was to provide a horse for the lessee to use upon the farm during the term, and the lessor having furnished a horse at the commencement of the term, it was held that the lessee acquired a special property in the horse by the bailment, and was entitled, when the lessor had taken him away during the term, without providing another, to recover in an action of trover for the horse, against the lessor, damages, for. the loss of the horse during the residue of the term. Hickok v. Buck, 22 Vt. 149.

“ Where animals are let for hire, their increase belongs to the person who hires them, unless it be otherwise agreed at time the contract is made. It is otherwise however where they are lent. In that case the owner is entitled to the increase.” 8 John, 432; 12 John, 314; 9 Cow., 587; Cow. Treat., 4th Ed. § 587, p. 227.

Under this rule, therefore, the defendant was entitled to the increase of the cows, during the term, and the said animals, being said increase, having been replevied by the JPlaintiff, and the defendant having receive a return thereof to which he was entitled, <fce.. elected, under the statute, (§ 5038, C. L ,) to take judgment for the value of the property replevied, the same will be assessed by the court and judgment, entered in his favor accordingly.


author:
Ramsdell, J.
      By the Court.

text:
    In the Matter of the application of George Thompson to Change the Town Plat of the Village of Leeland. John J. Miller, Defendant.

    Where application is made to vacate a part of a street in a town plat, any person owning property adjoining any part of the street may appear and defend against the application. Where there is no paper pr.nted in the county where th" plat lies, notice of the application must be published in some newspaper printed in an adjoinii.g county, i- there be one.

      Leelanaw Circuit,
    January, 1870.

      S. O. Moffat, for Applicant.

      E. S. Pratt, for Defendant.
    The applicant tiled a petition to vacate a portion of a street in the village of Leeland. in which he claimed to own all the land in the blocks each side of that, portion of the street to be ' vacated.
    Miller owned land adjoining the street in the next block.
    Applicant claimed that inasmuch as he owned all the land immediately adjoining that portion of the street to be vacated, the defendant had no right to resist the application.
   By thi Court,

Ramsdell, J.

The part of the town Which it is proposed to alter is a street.

See. 6 of Act No. 189 of Session Laws of 1867, provides that “ any person owning any part of said town immediately adjoining that part which it is proposed to alter or vacate, may appear in opposition to such petition.” As the vacation of a portion of a street affects a whole street, this clause must be construed to give the right to appear in opposition to any property owner on the street. The narrow construction claimed by the counsel for the applicant would permit any person who chanced to own land upon opposite sides of a street, especially if he owned the entire of opposite blocks, to close up the street even though it be in the center of the town and its main tlmroughfare, and no one could defend against such an unjust proceeding.

Mr. Miller must be permitted to defend.

Counsel for the defendant then moved to dismiss the petition on the ground that notice of the application was not published in any newspaper as required by law.

By the Court.

Section 5 of same Act requires that notice of the pendency of the petition shall be given by publishing the same for 80 days in a newspaper printed in the county. It is admitted that there is no newspaper printed in the county; that there are two printed and published in the adjoining county of Grand Traverse, and that no notice was published in any newspaper. The fact that the applicant could not comply with the special law in this case, does not excuse him from complying with the general iaw governing legal advertisements; therefore he should have published the notice in one of the papers printed in the adjoining county.

The petition must be dismissed with costs.


author: Brown J.

text:
    The Commissioners of Highways of Manlius vs. Ira Chaffee and George Stone.
    Where an injury is dono lo a public bridge, not within tho limits of any designated highway dihtrict, an action for such injury should bo brought In tho name of tho Highway Coinmibsiouers — otherwise if the injury or interruption hud occurred to the laud upon which a highway runs. In such case an action for privute damages can only be maintained by the owner oí the fee, or by persons sustaining a particular injury; and tho only remedy the public hus, in case of such interruption, is by indictment, summary abatement, or peualty.
    The State Legislature has full power to authorize the construction of a bridgo over a navigable htream; and when such bridgo is built as required by the Act, no one has a right to complain of it on the ground of more inconvenience; and tho exercise of this power cannot be questioned except by a puramount law of Congress. The ordinance of1787 does not affect the question.
    Persons running boats upon a navigable river, ovur which a bridgo is built in pursuance of law, are responsible for, injuries done to the bridgo through tlu-ir negligence of the management of such boats; and tho timo tor a party to exercise cavo and skill Is before he puts himself in tho very road of casualty.
    Negligence a mixed question of law and fact.
    "Vigilence and skill in tho running of bouts should be increased in proportion to the difficulties in navigating in particular localities.
    Rule of damages.

      Allegan Circuit,

      March, 1870.

      F. J. Littbjohn and J, L. Haws, for Plaintiff.

      Williams (ii Humphrey and ,/. W. Stone, for Defendants.
   Charge of the. Court,

Brown J.

Gentlemen of the Jury: — The plaintiffs in this action seek to recover of the defendants for an alleged injury to the bridge over the Kalamazoo river, in the township of Manlius, occasioned, it is alleged, -by negligence in carelessly running the steamer “ Aunt Betsey” [upon and against it, on the 12th day of July last.

Counsels for the respective parties agree that the Kalamazoo river is a public highway, and that steamboats and other watercraft are, and for a long time have been, engaged in the navigation of its waters, between Allegan and Saugatuck, in the transportation of freight and passengers from Allegan to Saugatuck, in the State of Michigan, and Chicago, in the State of Illinois; that it is a meandered river; that the steamer “Aunt Betsey” was, at the time of the alleged injury, engaged in the navigation of said river in the transportation of freight and passengers from Allegan to Saugatuck. and Chicago, by connection at Saugatuck with the propeller “ Ira Chaifeethat Saugatuck is a port of entry at the mouth of the river. Counsel further agree that, at the time of the alleged injtfry, the defendant Ira Chaffee was the sole owner of the steamboat, and the defendant George. R. Stone, her master, and that said boat was duly enrolled and licensed under the laws of the United States; that the Kalamazoo river passes through the township of Manlius, as alleged in plaintiff’s declaration; that the said township is a duly organized township, under the laws of the State. No point is made in this case as to the joint or several liability of the defendants, if they, or either of them, are found liable at all. It is further stipulated that the bridge in question is not included in any organized road district in said township of Manlius, and that there is no claim made in this case, under the provisions of § 1113 and 1114, of the C. L., and to which I may have occasion to call your attention.

Every organized township in this State is a body corporate, having such powers and immunities as are prescribed by law ; and all suits and prosecutions by or against a township, in its corporate capacity, must be in the name thereof. Sac. 2, Art. 11, Const, § 497 C. L. The supervisor of each township is the agent of the township for the transaction of all legal business, by whom suits may be brought and defended, and upon whom all process against the township shall be served. § 596 C. L.

The Commissioners of Highways have, by law, the care and superintendence of highways and bridges in their respective townships; and it is their duty to divide their townships into road districts. $ 991 C. L.

Paragraph 1113, C. L. makes it the duty of the Overseer of Highways to prosecute for injuries done to highways and bridges, within his district, and § 1114 makes it the duty of the Commissioners of Highways to bring suit for such injuries, if the Overseer neglects to do so.

You will observe that, thus far, we have referred to no law authorizing the proceedings in this case,'as it is admitted that the bridge in question is not in any road district, such districts as lie along the river being bounded by the shore of the stream, instead of by the river, e i is usual — and in which case the districts would extend to the center of the stream. The Statute provides, $ 4911, C. L., that, in all cases not otherwise provided for, Commissioners of Highways of the several townships, and other officers therein enumerated, may bring suits “ upon any contract lawfully made with them or their predecessors in their official character, or to enforce any liability, or any duty enjoined by law, to such officers or the body which they represent, and to recover damages for any injuries dons to the property, or rights of such officers, or of the bodies represented by them.’’ Paragraph 4912 provides that whenever any of the officers referred to. in § 4911, shall bring suit by virtue of their office, it shall.be in the name of their respective offices, except that when brought by the Supervisor, it shall be in the name of the township.

Paragraph 4914 assumes that action may be brought against the officers referred to in § 4911; and § 4915 informs us what those actions may be, to wit: to recover, upon contracts which shall have been entered into, or liabilities incurred, by or in behalf of any county or township, by any officer thereof within the scope of his authority.

The Commissioners are a sort of quasi corporation. They derive no power whatever from the township, but from the peoplé of the entire State, through their representatives in the Legislature. The Legislature create the office, and define, limit and restrict the duties and powers pertaining thereto. The electors of the township simply declare what persons shall discharge these duties, and, to some extent, may provide the means to enable the Commissioners to execute the trust which the law has reposed in them.

For the purposes of this suit, it would seem unnecessary to declare whether the bridge in question was the property of the township, of the county, or of the State. It has been built for the use of the traveling public as a highway, and over and upon whieh they have a right to pass.

The trust committed to the Commissioners is the care and superintendence of the highways and bridges of the township, or within the township.

“ Towns, with us, are mere political organizations, created wholly by statute, for certain purposes of local government. They are vested with no franchises or special privileges for their own benefit. They have only such power as the statute confers, and are subject to no obligations, except such as as are derived from statutory provisions.” 4 Mich., 560. As a necessary incident to this local government, the law-making power has conferred upon the people of the several towns, the right to designate the various officers who are to execute the general law, directing certain things to be doné within the corporate limits' of such town, for the convenience and benefit of the people; and to give such officers such discretionary power only, as is necessary to carry on the trust reposed in them.

With this view of the case, I have no doubt but that the Commissioners of Highways are the proper party to bring suit for an injury to highways and bridges, not in any road district, if such an action can be maintained at all, by any body, or quasi corporation representing the public at large, or any political organization for local government.

The fee to the soil under the bridge is in the persons whose land is bounded by the river — 8 Mich. 18, overruling Wal. Ch. 155; 10 Mich., 125. But see 7 Wallace, 272 — and it has been held, that, as the only interest which the public has in a highway, is the right of passage, and that if an injury is done to the freehold, a private action for damages can only be brought by the owner of 'the soil, or by persons sustaining a particular injury ; and that, in case of interruption, the only remedy the public has, is by indictment, summary abatement, or penalty; and I think this must be recognized as the law. To determine, then, whether the law, thus announced, is applicable to this case, it is only necessary to determine whether the bridge in question belongs to the owner of the soil under it, or to any private individual. The place where the bridge stands, and the road leading to and from it, has been used as a highway ever since about the year 1842; so there can be no question but that the public have long since acquired a right to its enjoyment by prescription, so far as is necessary for the purposes of travel, even though such highway may not have been condemned to, or taken for, public use in pursuance of any statutory provisions. But does the bridge erected on the soil of this highway, vest in the owner of the soil, whoever he may be, as soon as erected ? or does it belong to the township or the public until abandoned ? If the bridge is part and parcel of the realty, and if the title to the bridge is in the owner of the soil upon which it is erected, then no one, not even the public, could remove the bridge without compensation to the owner of such soil; but I have no doubt but that the proper authorities have a right to remove the bridge without compensating the owner of the soil. In short, I am of the opinion, and advise you, as matter of law, that the title to the bridge is not vested in the owner of the soil. This being so, he could not maintain an action for injuries done to it; and as the Commissioners of Highways, of the township of Manlius, are, by law, made the trustees of the public to have the care and superintendence of the bridge in question, and, asno other provision is made by law to recover damages for injuries of the character complained of, I advise you that, in view of the provisions of § 4911 of the C. L., this action is properly brought in the uame of the Commissioners. The next question is, are the plaintiffs entitled to recover in this case; and do the fací s, disclosed by the evidence, show that the defendants are liable.

The bridge, to be within the provision of Act. No. 86, Sess. L. 1842, must be proved to your satisiaction, to be such an erection as is therein specified; otherwise, it is unauthorized ; it must appear that the draw bridge is over the principal current of the river, and affords a free and unobstructed passage, when drawn, for all boats, rafts and all other water-crafts, navigating the river; and that the length of the draw, in excess of thirty feet, must depend upon the nature and class of vessels navigating the river; and if this bridge does obstruct the passage of boats, rafts, and other water-crafts navigating the river, it is unauthorized by the Act, and if unauthorized, the plaintiff cannot recover; but I advise you that mere occasional inconvenieances do not, in contemplation of law, amount to obstructions. The Statue authorising the construction of the bridge, provides that it “ shall be at least sixteen feet in length, and shall contain a draw-bridge over the principal current of the river, at least thirty feet in length, affording a free and unobstructed passage, when drawn, for all boats,- rafts, and other water-craft navigating said river.” At the request of counsel, I advise you that “ the true construction of the grant is that the draw shall be at least thirty feet in length, over the principal current of the river, and that if for any purpose the bridge íb run irregularly across the current it is not a compliance with the Act, unless at least thirty feet of the principal current was'left open without obstruction ; ” and I say to you that if you shall find that the bridge was built in accordance with this Act, and properly maintained, no one can question the right to construct and keep up such bridge, on any ground of public inconvenience. Cooley Const. Lim. 592.

In discussing the question as to what is meant by an obstruction to navigation, when applied to bridges, Judge Cooley, of our own Supreme Court, in his work on “ Constitutional Limitations,’’ p. 592-3 says: But the bridge is not necessarily unlawful, because it may constitute, to some degree, an obstruction to commerce, if it is properly built, and upon a proper plan, and if the general traffic of the country will be aided rather than impeded by its construction. There are many cases where a bridge over a river may be vastly more important' than the navigation; and there are other cases where, although the traffic upon the river is important, yet an inconvenience caused by a bridge with draws, would be much less seriously felt by the public, and be a mueh lighter burden upon trade and travel than a break in aline of railroad communication necessitating the employment of a ferry. In. general terms, it may be said that the State' may authorize such constructions, provided they do not constitute material obstructions to navigation; but whether they are to be regarded as material obstructions or not is to be determined, in each case, upon its own circumstances. The character of the structure, the facility afforded for vessels to pass it, the relative amount of traffic likely to be done upon the stream and over the bridge" — These are some of the considerations to be taken into account in passing upon this question.

The burden of proof rests upon the plaintiffs. That is, the evidence upon which they rely must preponderate. You must find, in order to entitle them to a verdict, that the reasons for believing what they claim, are more weighty, more satisfactory than for believing otherwise. You must find that the injury complained of was occasioned through the carelessness and negligence of the defendants of their servants.

This question of negligence you are to determine, from all the facts and circumstances bearing upon the question. And in determining the degree of care and skill requisite in such cases, a few other considerations are proper.

At the request of counsel, I advise you that “ bridges, highways, streets and railroads are means of commercial transportation as well as navigable streams. The commerce passing over a bridge may be greater than on the stream it spans. The legis. lature have power to authorize the erection of a bridge over one of the navigable streams of a State for which they legislate; and it is for the legislature to weigh and balance the various considerations belonging to the subject, the obstruction to navigation on the one hand,and the advantages to commerce on the other; and to decide which shall be prefered, and how far one shall be made subservient to the other. 3 Wallace U. S. S. Court, 5 Amer. L. Reg 637.

This power of the legislature may be exercised by general or special Acts, and, when exercised, cannot be questioned, except, by a paramount law of Congress. Idem.

This power is not affected by the ordinance of 1787. That, ordinance simply placed the navigable streams on a common, law footing, as established by prescriptive user. 2 Mich. 519..

The legislature have passed upon the necessity and propriety of this bridge, upon its locality, dimensions and requisites, as a. connecting link in the road from Allegan to Singapore. They have further determined that the obstruction to the uavigation. of the river, occasioned by such bridge, must be submitted to, as both lawful and unavoidable, and, if the difficulty and hazard of navigation be thereby enhanced, then a proportional increase in the requisite care and skill will be demanded.

The common-law rule is to be here strictly applied, “ whoever to the injury of another, neglects a duty which he ought to perform by law, becomes liable to compensate the injury or damage.” The test is this: in order to avoid doing a damage to the property of another, a person is bound in law to such care in the use of his own property, as a prudent man would employ) under similar circumstances, if he were himself the owner of the property exposed to damage. 35 Cal.; Amer. L. Reg. Vol. 8 § 503.

The time for a party to exercise care and skill, is before he puts himself in the very road of casualty. If he fails to do so, h is of no consequence, in the eye of the law, whether he merely misjudges, or is obstinately reckless; his act is not careful, and he is to abide the consequence. Court of Appeals, N. Y. Amer, L. R. 86; and where an injury comes from the exclusive negligence of one party, he cannot shield himself from liability by nailing it an accident. 23 Ram. 196; 16 U. S. Dig. 466.

The question of negligence or want of due care is usually a mixed question of law, and of fact, and so it would seem to be in this case. When so, it is for the jury, and must depend upon the situation and circumstances of the case. What would be ordinary care at the crossing of a highway, may be gross negligence at the crossing of Railroad. 4 Zubris, (N. J.) 824.

Bridges over rivers, built by authority of law, with proper draws, are not a nuisance. Stockton, (N. J.) 624, 17 U. S. Dig. 477. A draw bridge over navigable waters, is not necessarily an obstruction amounting to a nuisance. The hindrance is a public necessity. 5 McLean, 425.

When two easments have a common right to the same place, it is the right of the public that both shall be enjoyed, as *ot unnecessarily to interfere with, or abridge the the right of either. 29 N. Y. 315.

Precaution and vigilance, on the part of officers of vessels propelled by steam, should be increased, in proportion to the difficulties of navigation in particular localities, and in proportion to the dangers of collisions to which they are liable to expose the property of others. 1 Newb. 461.”

If, after carefully weighing the evidence, and applying to it the rules of law, as given you by the court, you find the plaintiffs entitled to recover; you will then proceed to determine how much you shall award them. The rule briefly 6tated is, ‘‘just compensation for the injury sustained; ” .and just compensation is that which will repair the injury, and such extra expenses as are necessarily incurred in consequence thereof while making the repairs; and such repairs should be made at once; and if the party whose property is injured, neglects to make those repairs at once, or as soon as the same can reasonably be done, they are not at liberty to charge their own negligence in this respect, to the persons committing the injury. I refer now, in applying this rule to this case, to the expense incurred for extra help in managing the draw, after the same might have been repaired, or to any other cost or charges which might have been avoided, had the repairs been immediately made. In other words, if the plaintiffs are entitled to recover, the defendants cannot be held liable for any neglect on the part of the plaintiffs to put the bridge in repair at once, it being only the direct result of the act, and not the remote, for which defendants can be made liable. S. & R. on Negn § 595,' note 2.

You may, if you find the plaintiffs entitled to recover, take into the consideration the money they have necessarily expended, by way of repairs, to make the bridge as good as it was before, and what may still be necessary to make it as good as it was before, or . rather what would have been necessary1 if the work had been done in the month of July, 1869, and the extra expense necessarily incurred to manage the draw, and facilitate travel over the bridge as well as under it upon the river.

****** **


text:
    James B. Baldy, et. al., vs. George P. Smith.
    To entitle a plaintiff to costs in the Circuit Court, it must appear that the action was nof cognizable before a Justice of the Peace, or that his claim as established at the trial, ex-ceeded $200, unless reduced by set-off.

      Q. W Lawton, for Plaintiff.

      L. A. Tabor, for Defendant.
    The facts in this case sufficiently appear in the opinion.
   By the Court,

Brown, J.

In this case the Plaintiff brought suit in the Circuit Court, in assumpsit; his claim, with interest, amounting to $148. Pending the suit, the defendant made a payment to the plaintiff, so that at the time the cause was'heard, the amount due the plaintiff' was but $92,94, for which judgment was rendered.

The only question presented is, is the plaintiff entitled to costs'?

“There shall be allowed to the prevailing party costs, &o., Sess L. 1867, p. 84.

The words, “prevailing party,” are to be understood, as referring to those parties entitled to costs, under the unrepealed law. 16 Mich. 484.

“ In all actions for the recovery of any debt, or damages, or for the recovery of penalties or forfeitures,-in the eases, where such actions are not cognizable before a justice of the Peace, the plaintiff shall recover costs.

The plaintiff, in all actions where he shall recover any sum,, if it appears that his claim, as established at the trial, exceeded two hundred dollars, and was reduced by set off, shall recover costs. C L., 1461, Sec. 3, subdivisions 4 and 5.

In the case at bar, the plaintiff does not bring himself within either of the provisions of the above statute. First, the action was cognizable before a justice iff the peace. Second,, plaintiff’s demand did not reach $200, but only $127, and interest, amounting in all, to about $148.


text:
    The People vs. Geo. Vanderpool.
    By statute, “ the court in which the trial of any indictment shall bo had, may, at the same term, or at the'nexf term thereafter, on motion in writing of the defendant, grant a new trial for any cause which, by law, a new trial may be granted, or when it shall appear to the Court that justice has not been done, and on such terms or conditions as the Court shall directand a Court cannot, by passing sentence, a proceeding wholly in invzium, so far as the respondent is concerned, deprive him of his right under this statute, of coming into Court and moving for a now trial and presenting and urging his reasons therefor, at any time before the end of the term next succeeding the term at which the respondent was convicted.
    The actual presence of a defendant in Court is not necessary in order that his motion for a new trial may be entertained.
    Cumulative evidence is sueli as tends to prove the same fact which was before attempted to bo proved. Evidence offered not of the same fact, but of a different fact with the same logical bearing, held not to be cumulative.
    A new trial will sometimes be granted on cumulative evidonce if such evidence will make a doubtful case clear.
    A person is not qualified to sit as a juror, in the Circuit Court, unless his name appear on the assessment roll for the same year. The provision of the statute is iuexoiable and cannot, in a criminal case, bo ignored by the people or waived by the defendant.
   By the Court,

Ramsdell, J.

The defendant in the above cause, having been tried and convicted, at the last term of this Court, for the murder of Herbert Field, on the 5th day of September last, and having been sentenced by the Court upon that conviction, to solitary confinement at hard labor in tbe State Prison for life, which sentence is now in process of execution, and two days in the term at which he was convicted not having elapsed between the rendering of the verdict of conviction and the final adjournment of said Court, Ramsdell & Benedict and S. W. Fowler, his attorneys, and John Yan Arman, of counsel, came into Court and made and entered, in writing, the following motion viz.:

The People vs. George Vanderpool. The defendant comes and moves the Court to set aside the verdict of the jury rendered in this case, and vacate and annul the Judgment pronounced therein and to grant to this defendant a new trial on the following grounds and for the following reasons:

1. That said verdict is against the evidence and the law applicable to the same.

2. That since the termination of said trial the defendant has discovered new and material. evidence and testimony,, which was unknown to the defendant or his counsel at the time of said trial.

3. That the defendant and his counsel were surprised and disappointed upon the trial by the failure and refusal of George D. Pibbs to testify as he had previously stated to the counsel for defendant, he would testify.

4. That the defendant was disappointed by the unexpected absence of, and his inability to procure the attendance of, several witnesses whose testimony was material ana necessary for the defendant.

'5. That improper and illegal means were resorted to and employed to' influence the minds of the jurors against the defendant, to-wit: a placard was put upon the door of the Court room and a diagram upon the wall of the court room, both of them in such a position as to be seen by the jury, and both of them calculated and intended to convey to the minds of the jury ideas and impressions unfavorable to the defendant.

6. That the officers in charge of the jury disregarded the instructions of the court to keep the jury separate from all intercourse or communication with other persons nor to allow any one to associate or converse with them, but various persons actually did meet and converse with different members of said jury while they were impanneled to try said cause and while they were in charge of the officers.

7. That four of the persons impanneled and who were sworn and actually composed said jury were destitute of one of the qualifications of a juror as prescribed by-law, to-wit: Their names were not on any assessment roll of any township or,city ward in the said county for the year 1869.

8. That one of the jurors who composed the jury which tried said cause had previously expressed an opinion upon the merits of said cause, unfavorablé to defendant:

Which grounds are supported by affidavits filed in this ease.

To this motion the people, by Thomas B. Church, Esq., their counsel, interpose objections to the reception or hearing of the motion by this Court, for the following reasons, viz.:

1. Because the right of the respondent to make or to have made said motion is lost; the said respondent having waived and abandoned the same, by not interposing the same between the verdict of the jury and the sentence of the Court.

2. Said motion to be heard requires the personal attendance of the 'respondant in Court, where he now is not; being confined in the State Prison at Jackson, as will be seen from the records and files of the Court, to-wit: By the sentence imposed on said respondent, and the receipt for the body of said respondent, by the Superintendent of said State Prison.

These objections to the motion of the respondent are filed, in the nature of a special demurrer to the jurisdiction of this Court, and must be first considered. Upon these objections three questions arise:

1. Has this Court the right to grant a new trial in any case of felony after sentence ?

2. Has the Court a right to entertain a motion for a new trial in a case of felony without the actual presence of the body of the defendant in Court?

3. Has the defendant waived any of his rights by not interposing his motion for a new trial before the sentence was pronounced ?

Whether the Circuit Courts of this State have the power, independent of any statutory provisions, by virtue of their authority as the highest tribunal known to the laws of the State, for the investigation and finding of facts in issue in a ease at law, to arrest its own judgment and annul its own sentences, where those judgments or sentences are the results of its own errors, either in the application of the daw or in the finding of tire facts ; or where it is manifest and clear that injustice would -.■result from its own adjudications, it is not necessai’y in this instance to discuss. Section 6,082 of the Compiled Laws, covers the whole question of jurisdiction raised by these ■abjections, and reads as follows: 11 The court in which th e trial of any indictment shall be had, may, at the same term, or at the next term thereafter, on the motion in writing of the defendant, grant a new trial for any cause for which by law a new trial may be granted, or when it shall appear to the court that justice lias not been done, and on such terms or conditions as the eourt shall direct.” A court cannot by any action of its own in passing sentence, a proceeding wholly in inoitnm so far as the respondent is concerned, deprive him of his right under ihis statute, of coming into court and moving for a new trial, ■. and presenting and urging his reasons therefore. The statute •.gives the defendant until the end of the next succeed ing erm to make his motion, and it makes no exception for any contingency whatever.

The Supreme Court in the case of The People vs. The Judge of Wayne Circuit have decided that a circuit judge in his dis cretion might hear a motion for a new trial notwithstanding it was not made or entered within the time prescribed in the rules, and that, too, auer a bill of exceptions has been settled and a ¡writ of error sued out.

In cases of murder in the first degree the statute prescribes rtbe sentence which the court shall pronounce, but leaves the time when it shall be passed entirely to the discretion of the ■ court. Suppose then that the defendant is found guilty, and . the Judge, in the exercise of his lawful discretion, pronounces the sentence at once, and the very next day new evidence is discovered, which, if produced on the trial, would have entitled him to a verdict of acquittal, would it be claimed for a moment that he was barred from moving for a new trial before the same court, and exhibiting his affidavits to show the evidence discovered in order that the fact as to whether or not he had any good grounds for a new trial might be determined a And if he could not make bis motion before the court passing, the sentence, what tribunal could he apply to ? The Supreme Court will only act upon judgments rendered in the Circuit Courts, and will not examine facts until they are found to be true by an inferior court. Therefore, if the newly discovered facts are to be examined and passed upon at all, they must be-passed upon by the Circuit Court.

It wras claimed in the argument that the granting of a new trial after the sentence is without precedent, in any court of competent jurisdiction to grant new trials. But it was not shown that a new trial was ever refused for that reason under a statute like ours, and therefore it is fair to presume that a refusal to hear the motion would be equally without precedent. Precedents are established when the necessities of justice require them, and are followed for the same reason. But a qüain provision of the. statute r< quires no precedent to give it effective force, and the objection to the entertaining of the motion for this reason is not well founded.

2. Does it require the personal attendance of the prisoner in court before the motion can be heard ? I think not. When the motion to be heard is by the attorneys for the prisoner, and is designed for his benefit, and cannot injuriously affect his rights, I see no good reason why the prisoner should be required to be present in court.

3. Has the defendant waived his right to be heard on this motion by not interposing th.is motion before sentence ? The rule» of practice require that when a special motion is made, the reason upon which it is founded shall be set forth. When the prisoner was sentenced the 2d, 6th, 7th and 8th reasons set forth were unknnwn to him or his eouhsel, and therefore couM not have been heard upon any motion for a new trial, made, at, the time. Under section 6,082, already quoted, he was entitled't® wait and pursue his efforts to discover more testimony until the the last day of the present term before making his motion, even though he had discovered all the facts mentioned in the motion before the sentence was pronounced.

The next question is whether the reasons set forth in the motion are all, or any of them true.

1. Was the verdict against the evidence in the case and law applicable thereto!

I find from the proceedings of the case, the statement of the Prosecuting Attorney in opening the case to the jury, and the evidence produced on the trial, that in order to establish the hypothesis of the prisoner’s guilt with sufficient certainty to warrant a conviction for murder in the first degree, the following evidential facts should have been established in evidence beyond all reasonable doubt:

1. That Herbert Field was murdered by some one.

2. That he was murdered in the Bank of Manistee, between the hours of 11 a. m. aud 12 m., on the 5th of September last.

5. That the defendant had sufficient motive for, and an opportunity, of killing Field at that same time aud place.

4. That the defendant had the means wherewith to convey the body to the month of the Manistee River aud anchor it there.

5. That the currents of Lake Michigan took the anchored body from the mouth of the Manistee River to a point on the shore of Lake Michigan twenty miles below.

6. That the defendant attempted to destroy evidences of the murder under circumstances which precluded to a reasonable certainty the probability of his being ignorant of their being such.

The first of these evidential facts I find was clearly established by the proofs.

Unon the second, I find the preponderance of evidence was against the hypothesis that the murder was committed at the Bank of Manistee between the hours of 11 a. m. and 12 m., on the 5th day of September last.

Upon the third, I find the motive or apportunity to kill Field at that time was not proven beyond all reasonable doubt.

Upon the fou:lh, I find there was no evidence to show that the prisoner had any means of conveying the body from the bank to the mouth of the Manistee River, and I find further that there is a reasonable doubt of his being able to take the body from the bank to the mouth of the Manistee River and anchor the same and return during the time elapsing between the time he left home and the time he called at Dr. Fisher’s.

Uupon the fifth, from the perfect preservation and unabraded condition of the boty when found, and the testimony of the physicians as to the time it had been exposed to air, I find there are grave doubts as to the current oj Lake Michigan having taken the anchored body from near the mouth of the Manistee River to the point where it was found.

And upon the sixth evidentiary fact I find that there is no evtdence to show that the property destroyed was of any particular value to the prisoner, or to show that there were evidence of crime upon it.

I therefore find from a careful consideration of the pleadings and the whole evidence in the case, that there is not only a reasonable doubt of the prisoners guilt, but of a fair presumtion of his innocence, and that the verdict was against the evidence in the case and the law applicable to the case.

Upon the second reason set forth in the motion, I find that there is no affidavit on file indicating that the matters contained in the affidavits of Mary Loyd and Mrs. Hagadorn were newly discovered, and for that reason they cannot be taken into consideration. The reception and consideration of the affidavits of Embree Lott, Wilber F. Lott, and Edward Hall, is objected to by the prosecution, for the followfing reasons :

1. That thsy are not supported by the affidavit of George Vanderpool, alleging that \$he statements thereit contained were unknown to him at the time of the trial.

2. That they are merely cumulative.

As to the first point, I do not consider the affidavit of the prisoner indispensable to reasonably establish the fact that the evidence offered was unknown to him at the time of the trial. He appears to have gone into custody on the Wednesday after the disappearance of Field, and to have been closely confined ever since, and he is now in the penitentiary in execution of the sentence imposed upon him. His affidavit could only be obtained by the special favor of the officers having him in charge, which might or might not be obtained. His counsel show bytheir affidavits that they were employed at an early day, and that the evidence was unknown to them at the time of the trial, and they believe it to have been unknown to the prisoner. While in motions for the new trial the affidavits of the prisoner is desirable it is not always indispensable, and in this case-is sufficiently excused. I, therefore, find the fact to be that the evidence offered by the three last named persons is newly discovered, and was unknown to the defendant at the time of the trial; of its materiality, there is and can be no question. If Field was alive as late in the afternoon of the 5th of September last as indicated in the testimony contained in these affidavits, then the innocence of the prisoner would be, and must be, clearly established.

But is this evidence cumulative, and,therefore inadmissible ? I think not. The prosecution, on the trial of this cause, made it an issue that Herbert Field was murdered in the bank between the hours of 11 and 12 a. in., on the 5th of September last. To meet this issue, the defendant produced witnesses to prove that the bank door was open in the afternoon of that day, from which it was inferred that Herbert Field was still alive, and other witnesses who testified that they saw Field in the streets on the afternoon of that day at designated times and places. In respect to the evidence that the bank door was ojien, the testimony of witnesses who saw Field in the afternoon is cluarly not cumulative in the sense in which that word is used in law. They are all facts which tend to destroy the proposition that Field was murdered before noon ; but these facts, are of a different kind, and cumulative evidence is denied to be additional evidence of the same kind, though I should define it to be a surfeit of evidence on a particular point, as with this definition the rules requiring its exclusion agree more with reason and justice than with the other. In reference to the testimony of Mrs. Springer and others, who testified that they saw Field in the afternoon,-it is not cumulative, for they saw him at a different place and at a different hour, the facts are different, although they establish the same conclusion, viz.: that Field could not have beeii murdered before 12 p’ m. of that day.

In the case of Chatfield vs. Lothrop, 6 Pick., 417, cumulative evidence was defined to be such as tends to support the same fact which was before attempted to be proved. The evidence offered not being of the same fact, but or a different fact with the same logical bearing, under this definition, cannot be considered as cumulative.

But under this definition the rule that a new trial will not be granted on merely cumulative evidence; is not of universal application. Such evidence will not be refused if it will make a doubtful case clear. G. and W. on new trials, 1,063, and this evidence, if found true (and being uncontradicted and not incon sistent in itself for the purpose of a motion for a new trial, it must be taken as true), must have precisely that effect.

This newly discovered evidence will make plain that which was doubtful before, and to neglect it in such a case would be grossly contrary to the ends of justice, whose rules are as much established for the protection of the innocent as for the punishment of the guilty.

Upon reading the affidavits of Messrs. Fowler and Rams-dell as to the conduct of George D. Phibbs, I find the facts set forth in the third reason to be true, and upon reading the affidavits of Mr. Fowler and Mr. Ramsdell concerning the witnesses Wilcox and Adams, I find the facts set forth in the fourth reason to be true.

Upon the fifth reason stated in the motion, I find that after the jury were sworn, the prosecuting attorney proceeded to read the information and state the case to the jury, in which statement, among other things, he informed the jury he should be able to prove that on the Wednesday after the 5t(i day of September last, large spots of blood stains overspread with ink were found upon the bank floor. I find further, that afterward and during the early part of the trial, one David D. Ingram, without the knowledge of the Court, did clandestinely bring into the court room, and hang upon the wall at the left and rear of the judge, and at the right and front of the jury,' and in full view of the whole panel, a diagram purporting to represent the interior of the bank on Wednesday, the 8th of September last, and among other things, to represent the large spots of ink covered blood-stains mentioned by the prosecuting attorney as having been found upon the floor of the bank on that day, to which diagram the prosecution called the attention of the jury by asking the said Ingram if the diagram was an accurate representation of the interior of the bank on the 8th of September, and which diagram was calculated to convey to the minds of the jurors false impressions and ideas unfavorable to the defendant; for the reason that I find from the evidence of Dr. Duffield, who examined those spots with a thousand-power microscope, that there were no blood stains found-upon the surface of the floor under the ink spots that were found thereon.

Upon the sixth reason,.on reading and considering the affidavits of Simeon Anderson and James M. Allen, I find the statements contained in said reason to be true.

Upon the seventh reason, I find from the affidavit of E. E. Benedict that the naipes of four of the jurymen who composed the panel that tried the said defendant were not on the assessment roll of any township or ward in the County of Manistee for the year 1869.

On the part of the defense, it is insisted that one of the requisite qualifications of a juror is that his name shall appear on the assessment roll for the same year; that this provision is a quasi property qualification; that the defendant has an indefensible right to be tried by a jury solely selected from that class whose names are upon the assessment roll. On the part of the people, it is maintained that this provision of the statute requiring jurors to be taken from names on the assessment rolls is- merely directory, and a disregard for it is not an error; and, also, the order of the Court commanding the sheriff to summon one hundred good and lawful men, was substantially complied with when he summoned one hundred men irrespdctive of their names being upon the assessment rolls; and that a jury drawn from that number are not objectionable because their names did not appear.

The first question is, what constitutes a lawful juror ? The statute in reference to the return of jurors says: “ The said officer shall proceed 'to select' from the persons assessed on the assessment roll of the township or ward, for the same year suitable persons having the qualifications of electors, to serve as jurors,” etc. It afterward says, that in making such selection they shall take the names of such only as aie not exempt,etc.

The statutory provision directs the officers from what source they are to obtain the names .of jurors, and that in making their selection from that source they are to use care in selecting good men. They have no discretion as to where they shall obtain the names of the jurors to be returned, and can only use their discretion as to the particular names to be selected from that source. I do not consider that it becomes important to discuss the reason of the statute; it is sufficient that it exists. The term lawful persons, used in the crder of the Court, can refer only to persons possessing the qualifications of jurors regularly summoned. The defendant has a right to demand the extension of its full requirements, and if the officers of the law fail to do this, it is an error. I consider the reasoning of the Supreme Court in the case of Hill vs. The People 16 Michigan Reports, in reference to aliens as jurors, of equal pertinence and force in this case. The provision of the statute is inexorable, and cannot be ignored by the people or waived by the defendant.

Upon the eighth and last reason contained in the motion, from the affiavit of James M. Allen, Robert Green and T. J. Ramsdell, I find there are reasonable doubts as to the qualifications of the said Robert Green to sit as a juryman on the trial of said cause.

Therefore, in consideration of the whole matter, presented to the Court for examination on the motion before me, and the argument of counsel on the same, it appears to the Court that on the trial and cqnviction of the said defendant, George Vanderpool, for the murder of Herbert Field, in the Bank of Manistee, on the filth day o'f September last, that justice has not been done, and that the verdict against the defendant and the judgment and sentence pronounced and passed thereon was unjust to the defendant and erroneous in luw, and that the said -verdict ought to be set aside and the jngment and sentence pronounced and passed thereon, annulled and held for naught, and a new trial accorded to the defendant.

It is therefore ordered and adjudged that the verdict rendered against the defendant in this Court, on the 25th day of February last, be, and the same is hereby set aside, and the judgment and sentence pronounced and passed thereon against the defendant, George Van derpool, be, and the same is hereby fully vacated, annulled and held for naught. And it is further ordered and adjudged that, the said defendant, George Vanderpool, be tried anew upon the information filed against him in this Court.


text:
    Frank Clay vs. John P. Schwab.
    Forgery may be committed by deceitfully and fraudulently obtaining the signature of a party to ao instrument of which he has no knowledge or intention of signing.
    Lenawee Circuit,

      April, 1870.
    This was an action upon a promissory note for one hundred and fifty dollars, made b'y the defendant, payable to O Simpson order, six months after date, dated April 14, 1869, and endorsed by the payer.
    Plea the general issue.
    The defence was that the note was a forgery.
    The defendant is a German, residing in the town of Ridge-way, speaking the English language imperfectly, and not able to read it.
    The facts, as testified to by him, that two strangers, one of whom called himself Simpson, came to him at his residence, at the date ofi the note, and professed td be engaged in selling a patent washing machine, and appointing agents for this purpose in the several towns of the county. They proposed to him to take the agency tor the township in which he lived, stating that they would send him thirty machines by express, that he could sell them at ten dollars each, or more, and out of the proceeds pay them five dollars for each machine sold, he retaining the balance for his compensation; that he would have nothing to pay unless he sold the machines or some of them but it he sold the machines he should pay $150, or in that proportion for what he did sell. He consented to take the agency on these terms, and they produced a paper which they represented to be a contracts account to them for their share of the proceeds of the machines which he should sell, and pretended to read it to him, (he not being able to read it himself,) and requested him to sign it, which he did. That as read by them it was not a note, but an instrument containing the agreement be^pre mentioned. That he signed no other paper, than this. That no machines were sent. The note sued was a printed blank filled up and signed. The defendant stated that the paper which he signed did not look like this, but was a larger and longer instrument, and as read to him had no such terms as contained in the note.;
    He stated that the signature looked like his, and he could not say whether it was or was not written by him, but this was not such a paper as he signed.
    The plaintiff testified that he purchased the note in good faith, before maturity.

      Qeddes & Miller, for plaintiff,
    cited 2 Russell on Crimes, 316; Roscoe’s Crim. Ev., 489; 4 Mass., 45.

      A. L. Miller, for plaintiff,
    cited 6. Shep. (18 Maine), 368; The State vs. Shurtiff; 6 Cow, 72, The People vs. Peacock; 4 T. R., 28, Mead vs. Young; 1 Phil. Ev. (new ed.), 751, 752.
   The plaintiffs counsel requested the Court to charge the jury, among other things, as follows;

1. That under the pleadings, it is not material in this case whether or not fraud, deception, or falsehood was the means by which the signature of the defendant was obtained to the note note declared on, nor is it material if the defendant supposed he was signing a contract or any other instrument, and did not know at the time'that he was signing a note, but then was told, and believed he was signing some other agreement and not a note at all.

This request was refused by the Court.

2. That if the question of fraud, deception and falsehood in 'obtaining the signature of the defendant to the note were property in issue, if the note was not forged, it could not become material unless knowledge of such fraud, deception and falsehood were proved against the plaintiff before or at the time he purchased the said note, the same having been purchased by plaintiff before maturity of the note, unless he had such knowledge or information as would put a prudent man on inquiry.

This request was granted.

3. That obtaining the signature of the defendant to this negotiable promissory note by fraud, deception or falsehood is not forgery, such as will avoid this note in the hands of an innocent holder for value when purchased before maturity.

Refused.

4. That forgery, such as will avoid this note in the hands of plaintiff, must be a false making, alteration of, or addition to the same in some material point, and that such making, alteration or addition cannot be presumed but must be proved by defendant.

Granted.

The defendant’s coimsel requested the following charges, among others:

1. That if the signature to the note, though genuine, was not made to the instrument in the form it now appears, but to an instrumant different in any material respect, it is a forgery.

Granted by the Court.

2 That if the signature of the defendant was obtained from him fraudulently, by covering over the body of the note with another and materially different instrument, with gum or otherwise, so as to conceal the body of the note and make it appear another and different instrument that he was signing, and the defendant was led to believe, by the appearance, of the paper, and the fraudulent statements of the payee at the time, that he was signing such other instrument and not a note, and such other instrument was subsequently removed, so as to make the signature apply to the note, it is a forgery, and the plaintiff cannot recover.

Granted.

3. That if the defendant was unable to read the instrument which he signed, and the payee obtained his signature by deceit and fraud, by falsely pretending to read the same to him, and reading it not as a note but as another and different contract, and the defendant was thereby deceived, the instrument is a forgery, and plaintiff cannot recover.

Granted.

4. That although fraud alone in obtaining the note would not avoid it in the hands of an innocent, holder, yet if the fraud and deceit be such as to make it amount to a forgery, then the plaintiff cannot recver.

5. That if the insrument, though signed by defendant, was not signed with any intention of making a promissory note, or promising to pay according to the terms of such note, but with the intention and understanding that he was signing another and totally different instrument, and his .signature was procured by the payee of the note by means of artfully and designedly deceiving him as to the character and terms of the instrument he was signing, for the purpose of defrauding him, the defendant not being guilty of any want of care in* the matter, the instrument is a forgery.

Granted.

6. That forgery does not consist alone in the counterfeiting or false making of a signature, but may be perpetrated by the alteration of a genuine instrument, or by deceitfully and fraudulently obtaining the signature of a party to an instrument of which has no knowledge and no intention of signing.

Granted.

7. That if the note was signed by the defendant, but at the time it was signed had preceding and above it on the same paper, and so connected as to make the whole appear to the defendant as one instrument, and if the terms of such preced' ing contract were such as, taken with the note, would alter its effect, and the defendant did not intend to sign a note alone, and such preceding contract was subsequently cut off without the defendant’s consent, it is a forgery.

Granted.

Verdict for the defendant.