THE PEOPLE US. JOHR.

press approval by the Auditor General upon the bond, but it contained the following endorsement: "Official bond of H. Johr, Treasurer of St. Clair County, to the Auditor General, 1865 and 1866. $20,000. Recorded and filed May 30, 1865.— S. D. Bingam, Deupty Auditor General."

On the trial the bond was first admitted, subject to objection. Defendant then offered to show that Johr had been robbed of the money, which offer was rejected by the Court — The bond was then excluded on the ground

that it was not statute. It was

executed and and approved according to the therefore held that the action could not be maintained, and this is the main question on the appeal.

It was, however, first held that, so far as the purposes of this suit went, it must be considered that the bond had been delivered. It would be fair to presume that, as the statute requires it before the County Treasurer sells lands, and this Treasurer did undoubtedly sell. Besides, defendant did not file any affidavit denying the execution of the bond, according to Rule 79 of the Circuit Court. Further, it was held that the Court would take judicial notice that S. D. Bingham was Deputy Auditor General and that his endorsement had the same validity as if signed by the Auditor General himself. It also shows an approval and acceptance by the Auditor General himself.

It was admitted by the Court for the purposes of the case that, unless the bond could be treated as a statute bond, it should have been declared on in the name of the obligee, not in that of the People. It was further considered that the Auditor General might have refused the bond without the approval of the officers above mentioned, and have ordered some person other than the County Treasurer, to make the sales; as between the County Treasurer and the People, it was probably his duty so to do.

It was, however, held that the Treasurer, who on the faith of the bond was allowed to make the sales and secure the money, and his sureties, could not afterwards be heard to make the objection that the bond executed by them and accepted by the Auditor General, was not approved by the officers required by statute. The additional precautions provided were intended solely for the benefit of the State, not at all for the benefit of the defendant or his sureties.

Judge Christiancy examined the authorities upon the question and found that all sustained this view of the case, except an ill considered case in 6 Georgia. The bond was therefore ordered to be treated as a statute bond, the judgment of the Court below was reversed and a new trial ordered.

SUPPLEMENT.

Abstracts of Decisions of the Supreme Court, rendered at the April Term, 1871.

TENENT US. THE MUSKEGON BOOMING COMPANY.

Bill in equity dismissed, it appearing that complainant has an adequate remedy at law. .

Appeal from Muskegon Circuit.

Opinion by CHRISTIANCY, J.-The bill was dismissed below upon demurrer, and the question was whether it stated a case which entitled the complainant to equitable relief. June 1, 1869, Thodeu Newell owned some land purchased of the United States, on the Muskegon River. He had platted the lands clear of the water and leased the water privileges to the defendant company. The lease was to expire March 1, 1870, and defendants were in possession transacting their busines, June 1, the aforesaid Newell sold to complainant for $26,000, twenty-three lots fronting on the said river and extending to the center of the stream, subject to the public right of navigation. It was also subject to the lease, and complainant was entitled to the rents. Complainant in due season notified defendant that he should want possession of the leased premises as soon as the lease expired, as he required this part of the property for his own use, he having a steam saw mill in the immediate vicinity.But complainant has been unable to get possession of the premises, as defendants persist in holding over; so he has 100,000,000 feet of logs which he wishes to raft to his mill, but is unable to do so because of the course of the defendants. Irreparable injury is charged and the complainant prays that the

defendants may be de

WAGER US. PECK.

creed to remove forever, and release to complainant all claim and pretence of claim to said lands; that complainant's title may be decreed free from the cloud created by such clains, that defendants may be enjoined from using the lands, etc.

Held, That supposing the averments of the title to be true, no case requiring the interposition of a court of equity was made out. The complainanant has a clear and perfect remedy at law. It is the common case of a tenant holding over after the expiration of his lease, and no reason is shown why the tenant cannot avail himself of the summary action given by the statute, and oust the defendants, or why he cannot resort to an action of ejectment.. If complainant had proceeded at law, he might have obtained the auxiliary writ of injunction from the Court of Chancery to restrain the defendants from injuring his property, but there is no ground for exercising original jurisdiction. The Court considered that no case was made which warranted relief upon the ground of a cloud existing upon complainant's title, nor did it consider the danger of irreparable injury by any means as strong as charged in the bill.

The decree of the Court below, dismissing the bill, was affirmed, with costs.

WAGER US. PECK.

If a paper supposed to constitute a part of the bill of exceptions is not incorporated in the body of the bill as signed by the Judge, it must appear by means of identification contained in the bill that it was made a part of it by the Judge who settled the bill of exceptions.

Under the act of 1869, to regulate the practice in charging juries, the requests complied wtih or refused do not constitute an integral part of the record to be returned on writ of error independently of any bill of exceptions. The statute does not change the form or office of a bill of exceptions or the mode of reviewing instructions.

Error to St. Joseph Circuit.

Opinion by GRAVES, J.-On inspecting the record it is clear that the assignments of error are all based upon supposed exceptions to refusals to charge as requested and to the charges given, while the return to the writ of error affords no ground for the objection.

PERRY US. SPENCER.

The supposed bill of exceptions neither shows the requests supposed to have been made or the charge which the Court gave, or sets forth any exceptions, or states that either party pray ed instructions. Nor does it suggest that any other was made a part of it. It is true that there are two papers in the return, which seem to have been made as requests on each side, and the word "refused" is written against those for the plaintiff, and the word "given" on one for the defendant. But those papers and marks have no other authorization than such as they derive from the circumstance that they are bound up in the returns to the writ. If a paper supposed to constitute a part of the bill of exceptions is not incorporated in the body of the bill as signed by the Judge, it must appear by means of identifica. tion contained in the bill that it was made a part of it by the Judge who settled the bill of exceptions. The papers in question cannot be considered as forming part of the bill of exceptions.

Held, That under the act of 1869, to regulate the practice in charging juries, the requests complied with or refused do not constitute an integral part of the record to be returned on writ of error independently of any bill of exceptions. The statute does not change the form or office of a bill of exceptions or the mode of reviewing instructions. Its purpose is to keep separate the functions of Judge and jury, to induce a reasonable measure of distinctness in charging, to perpetuate in permanent form the rulings of the Judge and to render more easy and cer tain the settlement of bills of exceptions.

Held, That under the circumstances of the case, it not being clear that any good would be done, the Court will not allow the record to be withdrawn, for the purpose of amendment, and the judgment is affirmed with costs.

PERRY VS. SPENCER.

(This case involves the question of the application of certain payments, and the following is as brief a statement as can well be made, and hence the omission of the usual bead-note.— REP.]

Error to Saginaw Circuit.

PERRY US. SPENCER.

Opinion by GRAVES, J.-In this case the Court previously held that voluntary payments to the amount of the penalty of the bond would discharge it. The case now comes up from a second trial on an objection to the finding of the Court. Spencer, and George K. Newcomb were owners in common of a planing mill, and carried it on under the name of Spencer & Newcomb. Spencer sold out his interest to Perry, who gave his bond to Spencer in the sum of $6,000, by the conditions of which he was to pay or cause to be paid the debts, liabilities and claims against the former firm of Spencer & Newcomb, and indemnity Spencer against them. Perry & Newcomb continued the business for a short time, when Perry bought out Newcomb on the same terms on which he had bought out Spencer. Perry at different times paid a large amount of the debts of Spencer and Newcomb, and a considerable portion of the amount was paid during the continuance of the firm of Perry & Newcomb, some of which was in cash. but the principal part was in notes of Perry & Newcomb. Before the notes matured, the sale from Newcomb to Perry took place, and by the arrangement between them, Perry assumed the payment of these notes and subsequently paid them. The debts of Spencer & Newcomb, paid by Perry in cash up to the time when he purchased Newcomb's interest, were charged by him to the firm of Perry & Newcomb. The right to recover was made to turn, in the court below,upon the effect to be given to the payments by Perry which were charged in the books to Perry & Newcomb. If the whole sum of these payments was reckoned against the bond, then it was admitted that the bond was satisfied. But defendant in error contended that, as the sums so paid were charged in the firm books of Perry & Newcomb, they were in effect payments by that firm, and that, as against his bond, Perry could only claim the half of such payments and the Circuit Judge so ruled.

Held, That this was error.

Perry's agreement was to take up or cause to be taken up the debts of the old firm to the amount of $6,000, and it was not material to Spencer from what source he obtained the