JULY TERM, 1859, AT LANSING.

Henry T. Sanger v. Wesley Truesdail.

Where one party to a cause, in this court, concedes that the judgment of the court must be for his adversary, to the full extent of what he could claim on argument, the court will not hear an argument, for the purpose of expressing their opinion on points thus rendered unnecessary to a decision of the cause.

Heard and decided July 12th.

Question reserved from St. Clair Circuit in Chancery. Defendant had interposed a plea to the bill of complaint, and the Circuit Judge reserved, for the opinion of this court, the question whether the matters pleaded constituted in law a bar to the bill of complaint.

On the case being now called, A. Pond and H. H. Emmons, for defendant, stated that they were satisfied the plea was too broad, and therefore bad, and must be overruled.

D. C. Holbrook, and S. T. Douglass, contra, claimed a right to be heard on the merits presented by the plea. They stated that they should take no objection whatever to the form of the plea, and they insisted that the court ought to pass only upon the points which they made.

By THE COURT:

It is conceded here, on both sides, that the plea is bad. This is the only question on which the court below has asked of us our opinion; and when this is disposed of, any further advice we might give the court below would

7 MICH.-B.

SANGER v. TRUESDAIL.

We will not, therefore, hear

be quite outside the record. an argument in the case.*

In the case of The Michigan Southern and Northern Indiana Railroad Co. v. Davis, which came on for hearing at the May Term, 1859, counsel for defendant in error, on the cause being called, conceded that there were some errors in the

record, and that the judgment must be reversed. Emmons, for plaintiff in error desired to be heard on other points, which he thought ought to be passed upon by the court, but the court declined to hear the argument.

Joseph A. Tower v. The Detroit and Milwaukee Railroad. Company.

A question as to whether a principle heretofore decided by the court is, or is not, applicable to errors assigned in a case now brought here by writ of error, is one to be discussed on the hearing, and not on motion to docket and dismiss. The question whether the plaintiff in error appeared and argued the cause in the court below, or consented to the judgment there entered, is one which cannot be raised on affidavit, on motion to dismiss the writ of error.

Error to Shiawassee Circuit.

Heard and decided July 12th.

The action was originally brought by Tower in Justice's court, where he recovered judgment, which was removed to the circuit court by certiorari, and there reversed. The allegations of error in the affidavit for certiorari were, first, that the service of the summons on the Railroad Company, in the court below, was irregular and void; second, that the judgment was against the evidence. The entry

of judgment in the circuit court recites, in substance, that the cause having been brought on for argument, and . due deliberation being had, it is ordered, &c., that the judgment below be reversed.

A. Gould, for defendant in error, now moves to docket and dismiss the case, because, first, plaintiff in error did not argue the case in the circuit court, but consented to the reversal of the judgment of the justice; second,