Where the testimony of a witness in reference to a particular subject is

part of a continuous conversation relating to that matter and to the subject of the litigation, it is not error to admit it, if the conversation is relevant, and a party on whose motion it has been stricken out cannot afterwards complain of its admission.

In an action for fraud in substituting one parcel of land for another in an exchange of real property, it is admissible to show that before the exchange defendant had offered to the witness the land which he afterward agreed to let plaintiff have, as this would tend to show that the substitution was not a mere mistake.

Portions of a connected charge which covers the whole controversy will not be considered alone for the purpose of bringing error.

Error to Van Buren. Submitted January 18. Decided January 25.

CASE. Defendant brings error. Affirmed.

Mills, Crane & Hilton for plaintiff in error.

Brown, Howard & Roos for defendant in error. In cases of intent to defraud evidence is admissible of acts similar to the offence charged, if done at or about the same. time: Cary v. Hotailing 1 Hill 316; Irving v. Motly 7 Bing. 553: 5 Moore & P. 380; People v. Saunders 25 Mich. 122; Phil. Ev. (C. & H. ed.) 452, n. 333; 465, n. 352; he who obtains property by false statements is liable as for fraud even though he did not know of their falsity: Converse v. Blumrich 14 Mich. 123; Stone v. Covell 29 Mich. 364; Carter v. Glass 44 Mich. 155; and if the circumstances give one a right to rely on the statements there is no negligence in doing so: Bristol v. Braidwood 28 Mich. 195; Swimm v. Bush 23 Mich. 99; Eaton v. Winnie 20 Mich. 156.

MARSTON, J. Nash brought this action to recover damages on account of an alleged fraud practiced on him by Dibble in the exchange of certain real estate. In brief the charge is that Dibble fraudulently pointed out to Nash a certain description of land, with certain improvements thereon, and afterwards conveyed an adjoining description of tamarack marsh lands of but little value and with no

improvements thereon. The plaintiff below recovered a judgment and the case comes here on writ of error. The errors assigned so far as deemed of sufficient importance will be noticed in their order.

The plaintiff was examined as a witness in his own behalf and was asked, "What was the state of your health previous to November, 1877?" which was about the time the agreement to exchange was made. The defendant was and had been the plaintiff's family physician, and it was claimed that he had represented the land he was offering the plaintiff as being in a more healthy location than where the plaintiff then resided.

The evidence was in our opinion admissible which this question was designed to and did draw out. In cases like the present a liberal rule has always been allowed in the examination of witnesses, so that all the facts and circumstances pertaining to and evidently having any bearing on or likely to throw light upon the issue made may be admitted. The fact that the defendant was and had been the plaintiff's family physician; that the plaintiff had not been enjoying good health; that a better or more healthy location was pointed out and offered him by his physician, certainly could not be said to have no tendency to show that the plaintiff relied upon the representations made and inducements held out. What is here said is equally applicable to several of the other questions raised and need not again be repeated.

The evidence of the witness Nash with reference to what was said about the Lawton property was in our opinion. properly admitted. It was but a part of a continuous conversation relating to that and the property in question. The court afterwards, on motion of defendant's counsel, struck out this evidence, so it is not apparent what right they now have to complain.

The testimony of Richmond and Showerman tending to show that defendant had previous to the exchange with plaintiff offered to sell them the land he first pointed out to the plaintiff as his was admissible. It certainly had a

direct tendency to show that his dealings with and conveyance of another piece of land to the plaintiff were something more than a mere mistake on his part. Beebe v. Knapp 28 Mich. 53; Gordon v. Cook, ante, p. 248.

Complaint is also made of certain parts of the charge. This court has repeatedly held that where the court has charged the jury, covering the entire case, portions of such charge will not be considered separate from the rest for the purpose of finding error. But few charges could stand such. a test. In this case the charge was full, clear and unobjectionable; the theory of both parties, plaintiff and defendant, was carefully presented, and the defendant can have no legal cause of complaint arising thereon.

We discover no error in the record, and the judgment will therefore be affirmed with costs.

The other Justices concurred.

WILLIAM MCCOMBS V. AMOS JOHNSON ET AL.

Entry of appearance-Dismissal of appeal-Error.

Motion was made in the circuit court to dismiss an appeal from the judgment of a justice of the peace, on the ground that it was not taken in due season, and also that the paper purporting to be a return was not made by the justice for that purpose. On these points there was room for dispute; but as it appeared that the appellees had entered their appearance in the circuit court generally: Held, that the appeal ought not to be dismissed.

Error lies on the final disposition of a case in the circuit court on motion to dismiss.

Error to Mecosta. Submitted Jan. 18. Decided Jan. 25.

ASSUMPSIT.

Defendants bring error.

Reversed.

John B. Upton and Frank Dumon for plaintiff in error. The dismissal of an appeal from a justice is a final determination of the case: Stall v. Diamond 37 Mich. 429; Willis v. Gimbert 27 Mich. 92: Robens v. Videto 33 Mich.

240; Van Santvoord v. St. John 6 Hill 157; Clason v. Shotwell 12 Johns. 31; and error will lie, whatever the form: Pearson v. Lovejoy 35 How. Pr. 193: 53 Barb. 407; general appearance in an appellate court to notice an appeal is a submission to jurisdiction: Coppernoll v. Ketcham 56 Barb 111; Lane v. Leech 44 Mich. 165; Falkner v. Beers 2 Doug. (Mich.) 119; Clapp v. Graves 26 N. Y. 419; Tower v. Lamb 6 Mich. 363; Wells v. Scott 4 Mich. 347; Roelof son v. Hatch 3 Mich. 279; Pierce v. Rehfuss 35 Mich. 55; Michels v. Stork 44 Mich. 2; where the record does not show that the appearance was qualified it is to be assumed to be general: Heeron v. Beckwith 1 Wis. 17; Lowe v. Stringham 14 Wis. 222; Cron v. Krones 17 Wis. 401; general appearance waives irregularities of process: Stonach v. Glessner 4 Wis. 275; Cord v. Hirsch 17 Wis. 408; Woodruff v. Sanders 18 Wis. 161; Barker v. Ins. Co. 24 Wis. 630; Dake v. Miller 15 Hun 356; Mors v. Stanton 51 N. Y. 649; Pixley v. Winchell 7 Cow. 366; Wright v. Jeffrey 5 Cow. 15.

J. H. Palmer for defendants in error.

COOLEY, J. An appeal from the judgment of a justice of the peace was dismissed in this case on the ground that it had not been taken in due season, and also because no return had ever been made to it.

The appeal appears to have been duly claimed on the fourth day after judgment was rendered, and a bond was tendered on that day. The justice makes affidavit that he required another surety to the bond before. he would approve it, and that the appellant took it away to procure a surety, and did not return it until the sixth day after judgment; which would have been too late. The bond was then approved, and the approval is dated as of the time when it was first presented.

The justice also says he never made any return to the appeal, and that his fees for making one were not paid. A transcript of the proceedings before him is on file, together

47 MICH.-38

with the appeal bond, but he explains this by saying that he gave a transcript to the appellant for his own use, and not for filing. This is denied by the appellant, and there is much reason for believing the justice is mistaken. It is shown in the case that subsequent to the filing of the transcript and bond the justice himself put on file in the circuit court the paper on which suit was brought; and he would. have been very unlikely to do this if he had not understood an appeal had been taken.

But what is more conclusive in the case is, that the appellees entered their appearance generally in the circuit court before the motion to dismiss was made. That was conclusive of the jurisdiction of the circuit court. Moser 3 Mich. 71; Tower v. Lamb 6 Mich. 36.

Shaw v.

As the case was finally disposed of in the court below, a writ of error will bring up the record.

The judgment of dismissal must be reversed with costs.

The other Justices concurred.

JOHN T. KEABLES ET AL V. EFFIE CHRISTIE.

Chattel mortgage-Seizure of goods in which third persons have undivided interests-Evidence of conversations-Sales to

several buyers-Instructions..

A married woman sued for the seizure of some goods in which she owned an undivided half interest. Held, that as she had shown a knowledge on the subject, her estimate of the aggregate value of the goods taken was admissible; and as the amount of sales was an element in arriving at the true condition of the stock, it was also proper to allow her to state the value of the goods sold out of the store during her own attendance on the store.

In an action by a married woman for the seizure of property mortgaged by her husband and son, but in which she had an undivided interest, evidence of defendant's conversations with the mortgagers on their own private business, and in plaintiff's absence, is inadmissible. But evidence bearing on a conversation between defendant and plaintiff concerning the purchase of the property for herself and her husband is competent to show his knowledge of her interest.