fore the township board, and they may submit the question for raising such moneys to a vote of the electors of the township. It appears, however, that the question has been twice submitted to them already, and by a large majority of the electors the vote has been adverse to raising any moneys for this purpose. Under this statute the qualified electors are to determine this question.

We are not satisfied that this bridge is a public highway, or that it was ever recognized by the public as such. It is alleged in the petition to be a public highway, and denied by the answer. If a public highway, as we have seen, the commissioner must make the determination whether the costs of rebuilding or repairing would exceed $1,000, and the statute vests in him the power to make such determination. If it is not a public highway, then whatever the cost, whether $1,000 or half that sum would be required, the commissioner could not be compelled to proceed. The court could not compel an officer of a township to make it a public highway, or to expend moneys of his township upon its repairs, if not a public highway. The public necessity of a bridge, then, must be determined by the local authorities and not by the courts. It is conceded that the highways leading to the river upon either side are public ways; but this act does not make the bridge a public bridge and public highway, or cast any duty upon the township to rebuild or repair, nor make the township in any way responsible for its being out of repair. The statute points out the way to make it public. It is left to the localities themselves to determine whether it shall be so in fact. We have no power, under the circumstances shown by this record, to compel the commissioner to act. The writ of mandamus must be denied. The other justices concurred.

EASTMAN v. CLEAVER.

(Supreme Court of Michigan. October 26, 1888.)

1. NEGOTIABLE INSTRUMENTS-ACTIONS-EVIDENCE-BEST AND SECONDARY.

In an action upon a note for a consideration arising out of a contract to saw lumber for a specified price, per thousand, "as evidenced by measurement of the same when shipped," evidence of what logs were cut is inadmissible where the lumber was measured both when loaded for shipment and when discharged.

2. SAME-EVIDENCE-RELEVANCY.

The note having been, as alleged, one of successive renewals, some of which were made by plaintiff and indorsed by defendant, and others made by defendant and indorsed by plaintiff, and the dispute being as to whom a balance under the contract was due, plaintiff should be allowed to show why, for purposes of discount, notes were nominally made by him and indorsed by defendant, especially where defendant gave evidence upon the question.

3. SAME-OPINION EVIDENCE.

Testimony as to the method of measurement at the place of shipment, by a witness who showed no knowledge qualifying him to correct or explain such measurement, is inadmissible.

4. SAME-EVIDENCE-COMPETENCY.

Plaintiff should have been allowed to testify whether a settlement agreed upon was final.

Error to circuit court, Tuscola county; WATSON BEACH, Judge.

Action by Charles E. Eastman against James W. Cleaver on a promissory note for $400. Plea of accommodation note with notice of set-off. Judgment for plaintiff for $80.50, and he brings error.

Black, Gray & Corcoran, for appellant. T. W. Atwood and Nixson & Quinn, for appellee.

CAMPBELL, J. Plaintiff sued defendant on his promissory note to plaintiff's order for $400 and interest, dated at East Saginaw, November 30, 1885, and payable in 60 days. Defendant's plea was, in substance, that it was an accommodation note, given in renewal of a previous note for the same pur

pose, made by Eastman and indorsed by defendant. There was also a notice of set-off. The defense which in part prevailed was on a somewhat different theory, to the effect that the note was given for an assumed balance, which was excessive. Plaintiff had judgment for only $80.50, and he brings error. There were some not disputed facts out of which the controversy arose, as well as some disputed ones, on which questions of evidence and some other legal questions were raised. On the 23d day of November, 1883, Cleaver undertook for the sum of $6 a thousand to cut and saw into lumber the white pine on certain lands in Delta county, converting the logs of 12, 14, and 16 feet long into such thicknesses as plaintiff should direct, using all care and diligence to avoid waste, using an edger, and keeping the lumber uniform in thickness and width, and turning the logs, when necessary to make the most valuable stock. He was further to haul it to the railroad side track at Beaver station, and pile and roof it accessible to the cars, in order for loading. The price per thousand was to be given "as evidenced by measurement of the same when shipped." Payments were to be made as Cleaver wanted them, but plaintiff reserved the right to keep back sufficient amount to keep himself safe. Defendant sawed a certain disputed quantity of lumber, and delivered it in the first part of the year 1884. Plaintiff claims that on an adjustment of their accounts in August, 1884, defendant was found to have been overpaid to the extent of nearly $800, for which he gave plaintiff a note for $400, and another for $300; plaintiff allowing for a disputed sum further. After some renewals, the bank preferred to take plaintiff's own note as principal debtor, and accordingly defendant indorsed it. After further renewal, the note in suit was, as plaintiff claims, given for the same amount, in proper form, as defendant's own liability. Plaintiff's theory was that defendant sawed not more than 400,000 feet, of which a part consisted of mill culls. Defendant claims that he cut enough more to put plaintiff in his debt, and that this note was for plaintiff's accommodation. The difference would amount to considerably more than 100,000 feet. Plaintiff had the lumber measured just before shipment and after arrival at its ultimate destination, and it fell considerably short of 400,000 feet. This measurement was communicated to defendant, as appears from a letter of defendant, before July 7, 1884; and in that letter he did not dispute its correctness, or that of the account for advances making up the statement, showing a balance due of over $600. That letter was written July 2, 1884. A previous letter of June 17th inclosed a memorandum of measurements, and told defendant if he was not satisfied with the measurement of Mr. Hiles he could have it measured at Escanaba, where it was to be sent for water carriage; that danger from fire made it necessary to send it forward. If defendant got either of these letters,—one of which is shown by his own letter to have been received, and made no objection to it, there would appear to be no basis for his defense. It does not appear very distinctly that he made any such objection before closing up the securities. But this question of fact we need not consider now. Defendant's claim was that he cut some 600,000 feet of logs, which were all sawed and delivered, and that wastage would not reduce the product to much, if any, less than 500,000 feet; so that plaintiff was in his debt. He also claims that a parol agreement was made to have a joint measurement at Beaver station, and that the shipments were premature. There are a good many errors assigned, but we shall only refer to the most important.

We do not think defendant could properly be allowed to show what logs he claimed to have cut. The contract was express that the product only was to be measured "when shipped." There was no occasion, therefore, for any measurement by scaling in the woods; and the testimony actually given of such scaling was very inexact. Defendant's own letters show that a good deal of the cork pine was unsound, and there was testimony further of considerable wastage otherwise. There was no apparent reason for guessing, when,

besides the measurement of Mr. Hiles, which was criticised, the lumber was shipped at Escanaba, and must have been measured when loaded and when discharged. This testimony, as offered and put in, was not made relevant, and should have been excluded.

We see no reason why plaintiff should not have been allowed to show why the notes for defendant's balance as he claimed it to be, were, for purposes of discount, made nominally by plaintiff to defendant's order. As between each other it is competent to show who was principal and who was surety. More or less testimony on this question got into the record on defendant's issue. We think plaintiff had a right to show all the facts.

One Kaskinette was allowed to give some very vague testimony in regard to methods of measurement adopted by Hiles. He showed no knowledge which would qualify him to explain or correct this measurement, and what he said was mostly not testimony. He was also allowed, as we understand the record, to show some purely irrelevant matters, which may have tended to confuse the issues. Mr. Eastman was not allowed to answer this question: "You may state whether or not it was agreed between you, when that matter was settled, that it was a final settlement." This was really the most important issue in the case. It appeared that plaintiff, to reach this settlement, made various concessions beyond what he claimed he was bound to make, in order to bring it about. There was strong evidence from which no other conclusion could be drawn, but it was nevertheless a point on which defendant raised a dispute, and had himself testified. It was clearly admissible.

The record is incumbered with more or less irrelevant matter, which was objected to. But it is so manifest from the result that the jury must have become confused in some way, and probably by the more important features of the controversy, that we need not go further into matters not likely to come up again. The judgment must be reversed, with costs, and a new triał granted. The other justices concurred.

PEOPLE v. BURKHARDT.

(Supreme Court of Michigan. October 26, 1888.) MALICIOUS MISCHIEF-INJURING HOUSE-MALICE-EVIDENCE.

*

In a prosecution under How. St. Mich. § 9170, providing that "every person who shall willfully and maliciously destroy or injure any house * * shall be punished, " etc., malice may be inferred from evidence that lead pipe and faucets had been severed and carried away, and that the plastering, moulding, and paper had been broken and otherwise injured, and that from wash-basins, doors had been wrenched, and the zinc torn and destroyed or not taken away, though the witness testifies that he has no reason to believe that defendant bore malice towards the owner.

Appeal from recorder's court of Detroit; GEORGE S. SWIFT, Judge. Defendant appeals from a conviction for malicious injury to a dwellinghouse, under How. St. Mich. § 9170, which provides that "every person who shall willfully and maliciously destroy or injure any house, barn, or other building of another, or the appurtenances thereof, * *shall be pun

ished," etc.

James D. May, for appellant. Moses Taggart, Atty. Gen., and George F. Robison, for the State.

CHAMPLIN, J. Burkhardt was convicted of willfully and maliciously injuring a certain building, to-wit, the building of Aletta A. Craig, No. 90 Alfred street, in the city of Detroit, by cutting lead pipes, tearing off faucets, and breaking plaster therein, to the damage thereof of $120. The people gave evidence tending to show that on the 14th day of October, 1887, the defendant was seen in the building mentioned in the information, which was an unoccupied dwelling-house. Later in the day he was seen getting over the back

fence of the yard in which the building was, with a bag on his shoulder. He was followed, when he dropped the bag, and ran away. In the bag were found a lot of lead pipe and brass faucets which had been cut and torn from the aforesaid building. It was shown that on the day previous the house was in good condition. George W. Snover testified that he examined the house the afternoon of the 14th of October, and found that the lead pipe and the small connections, and the lead pipe that runs into the wash-stand, and the wash-stand pipes, and the faucets in the bath-room, had been stripped and taken from the house, and the lead-pipe that had formerly been left in had been taken, and the ceiling was broken through, and there was considerable damage done to the plastering and walls. The following questions were asked of the witness, and his answers given: "Question. What else was there that attracted your particular attention in the house besides the lead pipe that was gone, and the faucets that were taken out, and the plastering that was broken? Answer. From the plastering or ceiling in the hall they tore that open, and they tore the zinc from the wash-basin that was of no value to them, but they didn't take it away, and they tore it out and destroyed them, and of course they had to be put back; we had to have new ones put in. They tore up the zinc in two of the wash-basins; but they didn't carry it away. They had wrenched the doors off two of the wash-basins, and in doing this they didn't show any skill in taking the things out; they did considerable damage to the moulding, plastering, and papering, and the wood-work about the wash-basin." This witness testified that he was agent for the rental of the house; that he did not know the defendant, and had no reason to believe that defendant had any malice towards the owner of the house. The testimony tended to show that the damage done the house was $125. The defendant's attorney requested the court to charge the jury that no evidence of malice had been given, and that they must acquit the defendant; which request was refused, and the defendant excepted; and this refusal constitutes the only allegation of error. This case is ruled by that of People v. Petheran, 31 N. W. Rep. 188. There was evidence from which the jury could infer malice. It was the natural inference from the facts proven. The judgment must be affirmed. The other justices concurred.

PEOPLE v. ETTER et al.

(Supreme Court of Michigan. October 26, 1888.)

1. CRIMINAL LAW-TRIAL-OFFICER IN CHARGE OF JURY-CERTIORARI-PRACTICE. A justice's return on certiorari does not sufficiently show that an officer who was sworn as a witness, and was also sworn to take charge of the jury, remained with the jury during their deliberation, where it states that the justice was informed by jurors that such was the fact, but that he had no personal knowledge thereof, though affidavits of the fact by the jurors are attached. Error not being shown by the return, there can be no reversal. MORSE, J., dissenting.

2. SAME-AUTHORITY OF ATTORNEY TO PROSECUTE.

Where it appears from the return of a justice in a criminal prosecution that he had been instructed by the prosecuting attorney to entertain actions when security for costs had been filed, that in such prosecution security had been given, and that he named an attorney to prosecute, to whom the people made no objection, and who is not alleged to have acted for a private person, error is not well assigned to the prosecution by such attorney.

Error to circuit court, Cass county.

Charles Etter and others were convicted before a justice of the peace of larceny. From a judgment of the circuit court affirming that of the justice brought up by certiorari defendants bring error.

Moses Taggart, Atty. Gen., and F. J. Atwell, for the People.

CHAMPLIN, J. Defendants were tried and convicted before a jury in justice's court of the crime of larceny, and each sentenced to pay a fine of $50, and to be each imprisoned in the county jail 60 days. Defendants sued out a v.40x.w.no.3-16

writ of certiorari from the circuit court upon the errors alleged, as follows: "(1) Because the suit against them was not conducted by the prosecuting attorney of the county, and no authority was shown by the attorney who appeared for the people to prosecute the same; (2) because the officer who arrested defendants was a witness, and testified against defendants upon the trial, and such officer had charge of the jury while deliberating upon their verdict, and remained in the jury-room in the immediate presence of the jury during the entire time of their deliberation; (3) because the sentence was indefinite; and (4) because there is a variance between the sentence pronounced by the justice and that set forth in the commitment." The justice made return to the writ, from which it appears that the attorney who prosecuted the defendants appeared at the request of the justice; that in a conversation with the prosecuting attorney he had instructed the justice to entertain actions when security for costs had been filed, and in the selection of prosecutor he named the attorney who prosecuted in this case. There was no objection made to the appearance and prosecution by the attorney in behalf of the people, and it is not alleged in the affidavit for certiorari that the attorney appeared for, or was acting in the interest of, any private party. Security for costs was filed before the warrant was issued. The first assignment of error must be overruled. To the second assignment of error the justice returned that the officer was sworn as a witness, and was also sworn to take charge of the jury, and as to the fact alleged that the officer remained in the presence of the jury during their deliberations he had no personal knowledge; that since the coming to him of the order for a further return upon that point he had interviewed four of the jurors, who informed him that the officer remained in the room. This allegation of error in the affidavit was supported by the affidavits of two of the jurors, which were annexed to the affidavit for certiorari. When a person is convicted of a criminal offense before a justice of the peace, and conceives that injustice has been done him, he has a choice of two remedies,-he may appeal to the circuit court, where a retrial will be had upon the merits; or he may remove the conviction into the circuit court by writ of certiorari. If he chooses the latter remedy, he elects to rely upon such return as he may be able to obtain from the justice, and he can claim no error that is not shown by the return. In Alt v. Lalone, 54 Mich. 302, 20 N. W. Rep. 52, which was a case for an assault tried before the justice, one of the objections was the presence of the sheriff during the deliberations of the jury, and the justice returned that he had no knowledge of this alleged fact, but had heard of it afterwards. This court said: "Under our statutes, a justice cannot grant a new trial, and has no power to inquire into what takes place outside of his knowledge. If nothing is returned on his knowledge which would affect a judgment prejudicially, it cannot be reversed on certiorari. The fact that he may have heard of something which he has no means of searching out can have no more importance than if any one else had reported similar matters. Under the settled practice in this state, a justice's return of what he knows officially must determine the result of certiorari. There is no authority to go beyond this." To the same effect is People v. Hobson, 48 Mich. 29, 11 N. W. Rep. 771, and Galloway v. Corbitt, 52 Mich. 460, 18 N. W. Rep. 218. The third and fourth assignments are not relied upon by defendants' attorney. They have no foundation, as appears by the return of the justice. The judgment of the circuit court must be affirmed, and the sentence of the justice carried into execution.

SHERWOOD, C. J., and CAMPBELL and LONG, JJ., concurred.

MORSE, J., (dissenting.) In this case I think the amended return of the justice properly and sufficiently shows that the officer remained with the jury during their deliberations. Therefore the judgment ought to be reversed, and respondent discharged.