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SMIT V. THE PEOPLE.

appealed. There being no bond in her behalf, there is nothing to amend; and having lost her appeal by lapse of time, it is out of the power of this court to relieve her.

Motion on her behalf denied.

Louis M. Smit v. The People.

Where action of Circuit Court Commissioner is affirmed, Supreme Court may issue warrant. Where this court affirmed the action of a Circuit Court Commissioner, under the fraudulent debtor's act, held, that the power to hear and dispose of the case finally, involved the power to order such action as would make the judgment effective. Warrant ordered to issue.

Heard and decided July 9th.

Motion for warrant of commitment.

In this case the Supreme Court at its last term affirmed the action of a Circuit Court Commissioner holding the defendant liable under the fraudulent debtor's act for having disposed of his property with intent to defraud his creditors. (For the facts see, ante, Louis Smit v. The People, p. 497.)

No warrant of commitment having been issued by the commissioner, an application was made to this court for an order of commitment, to carry out its previous judg ment.

A. Pond, in support of the motion,

Claimed this court has power to issue process necessary to carry out its judgments, and inasmuch as no other relief can be granted in this case the order of commitment must be made by this court.

D. C. Holbrook, for defendant,

Insisted this court had no jurisdiction to grant such an order, claiming that the statute being one in relation

RAYMOND v. HINCKSON.

to special proceedings must be strictly construed, and that it provided for no warrant in an order of commitment except such as might be issued by the commissioner who adjudicated on the fraud.

Per Curiam.

The power to hear and dispose finally of these cases necessarily involves the power to order such action as will make the judgment of this court effective.

Let a warrant issue as prayed for.

Uri Raymond v. Samuel Hinckson and another.

Notice of motion: Computation of time: Usual route of travel. The usual route of travel must govern in the computation of the time required to be given by rule in the service of notices.

Heard and decided July 9th.

Motion for re-hearing.

D. L. Pratt, for defendants.

Objected that the notice of the hearing of this motion. was not for a sufficient length of time under rule 26; Hillsdale, where it was served being over one hundred miles from Lansing by the usual route of travel, which was by railroad.

W. T. Mitchell, for plaintiff:

Claimed that the actual distance must determine, and that there being regular wagon roads between the points, they must regulate the distance.

The court held that the usual route of travel must gov ern, and that being over one hundred miles by railroad, the plaintiff must comply with the rule.

2

THE PEOPLE V. THE COMMISSIONERS OF HIGHWAYS.

15 518 69 109

The People ex rel. Taylor v. E. D. Tripp.

Replevin: Judgment by discontinuance: Assessment of defendants' damages. When
judgment of discontinuance, in replevin, is rendered by a justice against plain-
tiff, if defendant waive a return of the property, he is entitled to have his
damages assessed.
Heard and decided July 9th.

Motion for mandamus.

Taylor was defendant in a replevin suit before Tripp, who was a justice of the peace in Clinton County. The writ of replevin was not served a sufficient time before the return day, and the justice declined to proceed.

The defendant thereupon waived a return of the replevined property, and asked the justice to proceed to assess its value, which he declined to do.

R. Strickland, for the motion.

H. Walbridge, contra.

PER CURIAM.

Where a plaintiff in replevin, before a justice of the peace, has judgment of discontinuance rendered against him by the justice, it is the duty of the justice to proceed and assess damages in favor of defendant, when he waives a return; and if the justice refuses to do this, a writ of mandamus will be allowed, to compel him to do

So.

Mandamus issued.

The People ex rel. Mead v. Commissioners of High

ways.

Costs where plaintiff in motion makes default. The party appearing to resist a motion where the moving party makes default, is entitled to the costs of the motion.

Heard and decided July 10th.

SHELDON v. HAWES.

15 519 81 177

George Sheldon v. Josiah L. Hawes.

Alteration in written instrument: When to be explained. Where there are circumcumstances and appearances rendering an alteration in a written document suspicious, the party relying upon the document, as altered, is bound to explain it before he can recover.

Handwriting: Inspection by court. Where there was evidence introduced to show in whose handwriting a certain interlineation was made, and there was no evidence showing, or tending to show it to be in the handwriting of the defendant, it was held incompetent for the court, upon its own unaided inspection, and contrary to the testimony, to find it to have been written by him.

Re-hearing: When should be allowed. Where the only positive testimony in his own behalf came from the complainant, and after the hearing, a re-hearing was asked upon a showing of newly discovered evidence that complainant had made statements contradicting his evidence in the material points, in such a way as to be decisive of the case, the refusal of such re-hearing was held erroneous. Complainants' denial of the truth of the newly discovered evidence should not be regarded upon such an application.

Heard July 8th and 9th. Decided July 11th.

Appeal in Chancery from Kalamazoo Circuit.

This was a bill to foreclose a mortgage given to secure the payment of a note.

The defense was a material alteration in the note. A decree was rendered in favor of complainant, and a petition for re-hearing was filed, but denied.

The facts are stated in the opinion.

Balch, Smiley & Balch, for defendant.

There seems

1. The burden of proof rests upon the party who alleges the alteration of a note as a defense. to be a conflict of authority upon the subject, but the best considered cases hold the burden to be upon the defendant. The following cases are cited to sustain this view.— 2 Me. 147; 13 Id. 386; 7 Shepley (Me.) 337; 1 Halst. 215; 6 Wheat. 481; 20 Vt. 205; 5 Har. & J. 36; 11 Conn. 531; 7 Jones' Law (N. C.) 455; 12 Rich. Law (S. C.) 387; 7 Clarke (Iowa) 143; 2 Johns. Cas. 198; 1 Cowen and Hill's

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SHELDON v. HAWES.

Notes, Phil. Ev. 606 (4th Am. Ed.); 16 Sergt. & Rawle, 47; Best on Presump. 58.

The distinction sometimes made as to negotiable paper, can not be made here, as this note was not made negotiable.

The reason of this rule seems to be that to adopt a different rule would be to presume the plaintiff guilty of a fraud or crime, which would violate one of the strongest presumptions of the law; the presumption of innocence. It appears by the evidence that the complainant was complained against and discharged for making the alleged alteration. Would this court presume him guilty of a crime of which he has been acquitted upon an examination in a court of justice?

The presumption of fact is naturally in favor of the fairness and innocence of the alteration. -1 Wait's Law and Practice, 913; 20 Vt. 205.

Especially, and with great force, ought this principle to prevail in a new country like this, or as this was when these papers were executed, and when the papers are drawn by the parties themselves; but even if the onus probandi rests upon the complainant, he is only bound to prove the signature of the defendant, which establishes prima facie that the defendant signed it as it appears, and shifts the burden upon him to show that he did not. 2 Bosw. 352.

J. L. Hawes, in person.

1. Where an alteration is material and apparently suspicious, it is incumbent on the complainant to explain it.6 Cush. 34, 22; Eng. L. & Eq. 208; 7 Bar. S. C. 564; 8 Id. 514; 9 Cow. 125; 3 Ohio, 445; 9 Bar. 186; 19 Penn. 178; 1 Greenl. Ev. 564-5; 2 Id. 160; 2 Pars. on Con. 716; 8 Ad. & E. 215; 11 N. H. 395.

2. The alteration in such a case is presumed to have been made after signing, and by the holder or person to be benefitted by it.-35 N. H. 351; 9 S. & M. 375; 9

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