commissioners for allowance, the claim being $2,217.11. It is equally clear that the commissioners undertook to try and decide this claim, and that they did try and decide it, and allowed a final balance in favor of the claimant of $2,217.11. Certainly, a debt represented by a real-estate mortgage and a note signed by the decedent is a claim absolute, and is such a claim as the commissioners are authorized to try and decide by section 9378, 3 Comp. Laws. No appeal was taken from their decision. They were acting in a judicial capacity, and their action is final when not appealed from. Shurbun v. Hooper, 40 Mich. 503; People, ex rel. Green, v. McCutcheon, 40 Mich. 244; Byrne v. Hume, 86 Mich. 546; Finley v. Dubay, 112 Mich. 334. The claim presented to them was such a claim as they were authorized to try and decide. They did try and decide it. We think the effect of that decision is final. This makes it unnecessary to discuss the other questions raised.
MCALVAY, GRANT, BLAIR, and OSTRANDER, JJ., con
1. Where defendant, on trial for manslaughter in procuring an
abortion, admitted the abortion, but claimed that he believed
that the operation was necessary, and that he performed it
without criminal intent, evidence that he had performed a
similar operation on another woman for the purpose of pro-'
ducing an abortion was admissible on the issue of intent.
People v. Hodge, 312.
2. The testimony of the woman that defendant, on the occasion
of performing the criminal operation on her, requested her
to procure as much money as possible from the one respon-
sible for her pregnancy, but stated that he would make the
expense lighter if she would permit him to have sexual inter-
course with her, was admissible. Id.
ACCOUNTING-See INSURANCE (3).
1. Where a defendant's rights could be fully protected in a con-
solidated suit, he could not object to the order of consolida-
tion on the ground that he should have been made a party
by amendment to the original bill, though he might have
gained additional time by that procedure. Miller v. Walker,
433.
2. That a defendant, by an order of consolidation, was deprived
of his right to file a cross-bill against a codefendant to com-
pel a contribution to the indebtedness sued for does not enti-
tle him to a reversal of the decree, where he may maintain
an action at law against the codefendant for the amount due
from him. Id. 434.
3. Where a defendant might have appeared in either of the two
suits, and filed a cross-bill against a codefendant to compel a
contribution, but failed to do so, and failed to do so after the
consolidation of the suits, the order of consolidation did not
deprive him of rights sufficient to justify a reversal of the de-
cree in the consolidated suit. Id.
ADVERSE POSSESSION-See TENANCY IN COMMON (2).
AMENDMENTS-See MANDAMUS (4).
1. Where a verdict is directed for defendant after all the evidence
APPEAL AND ERROR-Continued.
is in, the question on error is whether, considering all the
evidence in plaintiff's favor as true, and giving it the most
favorable construction, it fails to make a prima facie case.
Robinson v. Ward, 1.
2. Notice of argument of a chancery appeal cannot be given until
the whole time for returning the appeal under Supreme
Court Rule 15 has expired. Byrne v. Gypsum' Plaster &
Stucco Co., 62.
3. Whether, under the provision of the Constitution (art. 6, § 5)
directing the Supreme Court to simplify the practice by
general rules, the court can, by rule, modify a statutory en-
actment as to practice, coming within the purview of the
constitutional provision, quære. Id.
4. The time for filing the record referred to in Supreme Court
Rule 34, for the purpose of giving notice of argument pro-
vided for therein, is forty days after the filing of the appeal
bond," as provided by Rule 15, notwithstanding the statute
(§ 552, 1 Comp. Laws), requiring the register to transmit
the record to the Supreme Court within 15 days after the ap-
peal is perfected. Id.
5. Where the trial judge certifies that the bill of exceptions con-
tains the substance of all testimony given on the trial which
affects the exceptions noted, the court on error will assume
that the record contains all the evidence affecting an excep-
tion as to the sufficiency of the evidence to sustain the find-
ings, though the testimony is in an abbreviated narrative form.
Farrell v. Danbury, 81.
6. Where the probate court enters an order for petitioner on sus-
taining a demurrer to a cross petition, and the circuit court
on appeal affirms the order on the record below, this court,
upon case made, will treat the case as though testimony had
been offered to prove the facts set out in the cross-petition
and had been excluded. Turner v. Burr, 106.
7. The refusal of the trial judge to set aside the verdict as against
the weight of the evidence and for excessiveness of verdict
will not be interfered with by this court unless, from a read-
ing of the record, his duty to grant the motion is manifest.
Nestle v. City of Flint, 153.
8. A determination on review that the testimony of a certain
witness was not sufficient to overcome the presumption of
notice to a bank of the defects in municipal bonds of which
it claims to be a bona fide purchaser, is binding on the court
on a subsequent review of the same case, the testimony being
the same. Thompson v. Village of Mecosta, 175.
9. A bill as filed contained a prayer for a temporary injunction to
restrain defendant's interference with complainant's rights
under contracts of which construction was sought by the
bill, but by agreement between the parties the injunction
was rendered unnecessary and the cause was litigated on
the merits by all parties. Held, that an objection by defend-
ant, on appeal, that the bill was filed solely to obtain con-
APPEAL AND ERROR-Continued.
struction of a contract, and was not within any recognized
branch of equity jurisdiction, and for that reason should be
dismissed, would not be considered. Pere Marquette R. Co.
v. Wabash R. Co., 215.
10. Assignments of error based on grounds not presented by the
objections below will not be considered. Boehm v. City of
Detroit, 277.
11. Objections first raised in appellant's supplemental brief will
not be considered. Foster v. East Jordan Lumber Co., 317.
12. Where, in an action for services and supplies in logging opera-
tions, the evidence showed the value of the services and sup-
plies, and an agreement binding defendant to pay therefor, an
instruction that the verdict for plaintiff must be based on the
agreement, irrespective of the value of the services, and, on
finding the agreement, the verdict should be in such sum as
plaintiff might be entitled to, cannot be held prejudicial,
where the whole charge is not in the record, and there are no
requests for instructions, and the amount of the verdict is not
shown. Howe v. Morey, 383.
13. An objection to the review of a case on error because the
record contains no judgment is not tenable where the return
shows a judgment entry and the bill of exceptions as printed
refers to a judgment. Lingle v. Dalzell, 399.
14. Though the effect of an appeal from a decree granting a per-
manent injunction is to bring the cause into this court and to
stay all proceedings at the circuit, its effect is not to dissolve
the injunction, and pending the appeal the injunction may
not be ignored. Wilkinson v. Dunkley-Williams Co., 409.
15. Objections to a decree foreclosing a mortgage, not made in the
court below, will not be considered on appeal. Miller v.
Walker, 434.
16. Under Act No. 15, Pub. Acts 1905, an appeal dismissed for non-
payment of the register's fee will not be reinstated where an
examination of the record satisfies the court that justice does
not require a revision of the case upon the merits. Collat v.
Ives, 500.
17. Where in a case tried to the court without a jury, the evidence
is conflicting, but there is testimony which, if believed, justi-
fies the findings, the judgment will be affirmed. Walton v.
Ryan, 502.
18. All points both of fact and law raised by a record on error are
res adjudicata in another suit between the same parties on
the same cause of action, though the court in affirming the
prior judgment discussed only the point deemed decisive of
the case, and as to the others stated that the circuit judge
decided correctly. Hall v. City of Kalamazoo, 503.
19. The affidavit of counsel cannot be accepted on error as show-
ing what was proven by official documents not in the record.
Village of Wayne v. Goldsmith, 529.
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