WHITE v. THE PORT HURON & MILWAUKEE RAILWAY Co. The verbal agreement or understanding, if actually existing, as had at the time when the first written contract was made, could be of no validity under the Statute of Frauds. It could only have been made material by showing a mistake and asking for its correction. Neither the bill nor the proof sustain this position, and that understanding cannot therefore be regarded as of any binding force, whatever may have been its terms. It is averred and proved that when the payment was made and the deed demanded, the agent of complainant refused to execute it, except as an escrow, to be delivered when the Company should execute a bond providing for a complete forfeiture of land and money, in case the road should not be completed by January 7, 1859, to Lapeer. It is to enforce this forfeiture that the bill is filed. Assuming this agreement to have been made, and valid, equity will not interfere to enforce a forfeiture, but where such relief is sought, will leave the party complaining to such relief as he can obtain elsewhere. Crane v. Dryer, 9 Mich. R., 350. But this agreement is not one which could be enforced if equity exercised such jurisdiction. It was wholly without any new consideration, and was also void under the Statute of Frauds. As a condition upon the deposit of a deed in escrow, it may have had a legal effect upon the delivery of the deed, and the moral character of the transaction by which the deed appears to have been surreptitiously obtained, must be regarded in that view. But as a foundation for any right to demand any forfeiture of money and land, it is of no validity whatever, and the rights of the parties must be governed by the only agreement in the case which complied with the statute. The only relief to which complainant could be entitled in equity, must be dependent on his restoring the purchase price which he received. If he desires his land, he must return the price paid, which, by the contract, 13 MICH.-X. WHITE v. THE PORT HURON & MILWAUKEE RAILWAY Co. was regarded as an equivalent. He was at liberty to retire from his agreement on those terms, and we are disposed to regard him as not having lost that right when the bill was filed, as no waiver was then insisted on. We are also of opinion that, under all the circumstances, a literal compliance would be sufficient, and that interest should not be allowed in this Court by way of damages on the money received by him. The contract allowing him to rescind it does not provide for interest, and whatever may have been the result in a suit at law for the non-fulfillment of his agreement to convey, (upon which we now express no opinion,) equity does not require such a condition to be imposed on his withdrawal for non-completion of the road. We have had some doubts whether we could properly grant him relief at all, inasmuch as he prays a forfeiture; but as the bill sets out all the agreements, and shows his desire to withdraw from the agreement, and seeks general relief, we are disposed, instead of dismissing, to grant a decree that, upon re-payment by complainant to defendants of the purchase money and stock within a reasonable time, they be compelled to release the land and all further claims under the written agreement, and in default of such payment, that the bill be dismissed. The defendant will be entitled to the costs of this Court; but, in consideration of the fraudulent manner in which the deed was obtained from Mitchell's office, we shall leave each party to pay his own costs in the Court below. If complainant was technically in default for not conveying on demand, the remedy should have been sought by honest means, and not by stealth and fraud. The decree below must be reversed with costs, and a new decree entered, directing that complainant have leave within forty days to reconvey the stock and refund the $6,250 received by him to defendants; and thereupon, that the defendants be decreed to reconvey the premises, WHITE v. THE PORT HURON & MILWAUKEE RAILWAY Co. and to release all claims of every kind under the agreement, and be perpetually enjoined from setting up any claim thereafter to said land or under said agreement; and that, unless complainant comply with such condition, then his bill shall be dismissed. The case to be remanded for further proceedings to carry out this decree. COOLEY and CHRISTIANCY JJ., concurred. MARTIN Ch. J. dissenting: So far as the bill of complaint in this case asks for a decree of forfeiture of all moneys paid by the defendant upon the contract for the purchase of the land mentioned in it, I agree with my brethren, that this Court cannot grant the prayer of the complainant. Courts of Equity never enforce forfeitures, but jurisdiction over this subject is left exclusively to the Courts of law, and is exercised by the latter with great reluctance, and only in clear and positive cases. I do not perceive how we can grant any relief to the complainant under the pleadings and evidence in this case, except to order the deed which had been deposited with Mitchell in escrow to be delivered up to be cancelled, and the title re-invested in the complainant. In my view of the case, it becomes immaterial what was the written contract between the parties, or whether any subsequent verbal agreement was entered into respecting the subject matter of the written contract or the delivery of the deed, or whether such subsequent agreement was valid or void. It is beyond dispute that the deed was deposited with Mitchell by White in escrow, to be delivered to the defendant only upon the compliance by the latter with what White claims to be a valid agreement, and upon condition of its performance. This deed was surreptitiously obtained from Mitchell's possession, without his knowledge and without the authority or consent of WHITE v. THE PORT HURON & MILWAUKEE RAILWAY Co. the complainant. It matters not that the complainant had obligated himself to execute and deliver a deed upon the performance by the defendant of his agreement, nor would it matter if such agreement had been fully performed according to the understanding of both parties, so that nothing remained to be done by the defendant; for as the deed was never delivered, nor left for delivery except upon condition of certain acts to be done by the defendant, which were not done, no title passed by the unlawful and fraudulent acquisition of such deed, and upon which the rights of the parties can or should be adjusted. 'It is, to my mind, a monstrous doctrine, that any possible right can be acquired by a deed obtained as this was by the defendant, or any right exist to be adjusted by a Court of Equity relative to a title thus obtained. The defendant can have no rights, or ask anything from the Court, until the deed shall be surrendered, and the parties restored to the condition in which they were before its fraudulent acquisition. I cannot regard the deed as valid for any purpose, nor consent to adjust equities where a deed thus obtained shall be in any wise recognized in such adjustment; and I do not think any principle can be discovered, or case found, where such a thing has been attempted before the present. I think, therefore, that the complainant is entitled to a decree ordering the surrender of the deed to him to be cancelled, and such necessary conveyance from the defendant as may make his title good of record, and to his costs, and that adjustment of the rights and equities of the parties whereby any right or equity of the defendant shall be recognized, shall depend upon such surrender and re-conveyance, and a bill brought for such purpose after the defendant has restored to the complainant the title thus fraudulently and unlawfully acquired. ELLIOTT v. THE PEOPLE. Robert E. Elliott v. The People. Detroit House of Correction- -imprisonment in. Under the act establishing the Detroit House of Correction (Laws of 1861, p. 26S,) no Court or magistrate has any power to sentence to imprisonment therein for any offence except those punishable by imprisonment in the county jail. And one who has been convicted of an offence punishable by imprisonment in the county jail or State prison, in the discretion of the Court, cannot be imprisoned in the House of Correction for a longer period than would have been lawful in the county jail. - Excess of authority in sentence of prisoner-the effect. Where the sentence imposed by the Court upon a prisoner is an excess of authority, and therefore unlawful, this Court cannot substitute for such sentence a lawful one; and if there is no error except in the judgment, there can be no new trial, nor can the Court below give a second judgment: hence, the prisoner must be discharged. Heard May 12. Error to the Recorder's Court of Detroit. G. V. N. Lothrop, for plaintiff in error. Decided July 8. A. Williams, Attorney General, for the People. Plaintiff in error was convicted in the Recorder's Court of Detroit on an information for embezzlement, and was sentenced to the Detroit House of Correction for two years. He now alleges for error that no sentence could lawfully be given requiring him to be confined in that prison more than one year, and that a longer sentence must be only to the State Prison. The statute punishing the offence provides for imprisonment in the State Prison not more than five years, or in the County Jail not more than one year, with a fine. -2 C. L., $5762, §5773. By Section 16 of the Act establishing the Detroit House of Correction, (L. 1861, p. 268,) it is provided that after the House is completed, and its completion certified, "it shall be the duty of every court or magistrate in the said County of Wayne, authorized by law, |