THE PEOPLE V. JACKSON.

a common street, which, however, was not a thoroughfare, by reason of the houses at the end. Lord Kenyon said, "As to its not being a thoroughfare, that can make no difference;" and, upon principle, I think he was right, notwithstanding what is intimated to the contrary in Woodyear v. Hadden, 5 Taunt. 125, and in Wood v. Veal, 5 B. & Ald. 454. In the case of Bateman v. Bluck, the locus in quo was a passage leading from the public street up to a court, called Hat and Mitre Court, which consisted of fourteen or fifteen houses, belonging to the plaintiff. The passage had always been lighted by the public authorities of the parish, and had been paved by the authorities. at the request of the plaintiff. There was evidence of user as a highway; and the jury had found it to be such. The only question for the court was, whether, as a legal possibility, there could be a highway where there was no thoroughfare; and the court held, very properly, I think, that there might be.

It is easy to see that a way, or cul de sac, which forms the usual route of travel, or means of access, to the fronts of a number of dwellings, stands upon a very different ground, in respect to the question of user as a highway, from one which leads only to the rear of lots fronting on public streets. The former constitutes the ordinary means of passage between these dwellings and the world at large; not only for the occupants, but for all others who may wish to call upon them for any purpose, or all purposes generally; while the latter can only be used as a passage for purposes connected with the lots themselves. In the first case, the use is for general purposes, and may, therefore, be a public convenience; in the latter, its use is directly connected with the use of the lots, and essentially appurtenant to them, and therefore of merely private convenience; and if all the adjoining owners see fit to close it, it is not easy to see how the public at large can be injured. If one, or a part, of the adjoin

THE PEOPLE V. JACKSON.

ing owners, close it without the consent of another, that other, in a proper case, has his individual redress by suit.

Whether, therefore, we look to the information and the evidence together, or to either alone, we can see no ground for holding the place in question a highway. No public prosecution, therefore, can be supported for the obstruction complained of. This conclusion disposes of the case.

The verdict should be set aside, and the information dismissed. Let it be so certified to the Recorder's Court. The other Justices concurred.

In the matter of John W. Adams.

A party to a suit in another state cannot be committed under § 4295 of Compiled Laws, for refusing to give his evidence under a commission issued in said suit to take it here.

Heard November 30th. Decided December 1st.

Petition for habeus corpus.

The petition set forth: That petitioner was restrained of his liberty by the sheriff of Wayne county, by virtue of a pretended warrant issued by T. S. Blackmar, circuit court commissioner for Wayne county, authorizing his arrest and imprisonment for refusing to testify as a witness in a cause pending in the Supreme Court of New York, wherein a commission had been issued to T. W. Lockwood and Horace Hunt, Esqs., to take his testimony: That petitioner is one of the defendants in said suit, and could not give his testimony without subjecting himself to pecuniary loss, and charging himself with debt; and for these reasons, and also for the reason that he believed, and was advised, he was not bound to disclose anything against his own interest, he had refrained from giving such testimony.

IN THE MATTER OF ADAMS.

A writ of habeus corpus having been issued, as prayed, the sheriff now returned the same, with a copy of the warrant of commitment attached, dated November 29th, 1859, and reciting the issue by said circuit court commissioner of a summons to the petitioner to appear before said Lockwood & Hunt, as commissioners, November 22d, 1859, to give evidence in the cause specified in the commission; that proof had been made to the said circuit court commissioner that said summons had been duly served on petitioner, his fees as witness paid, and that petitioner appeared before the commissioners at the time and place appointed in the summons, but then and there refused to be sworn and examined; wherefore the sheriff was commanded to commit him until he submitted to be examined, or was discharged according to law.

D. B. Duffield, for petitioner:

The only remedy of the party where a witness refuses to give evidence under a foreign commission, is to prosecute for the penalty which the statute imposes. The compulsory process here resorted to is excluded where a penalty is imposed for the disobedience.-Comp. L. § 4298.

But the statute was not designed to apply to the case of a party to a suit at all. Witnesses in the common law sense of the term are alone intended by it.

H. K. Clarke, for respondent:

Section 4298 only excludes the operation of the "preceding provisions" from cases where other special provivision is made by law for compelling the attendance of witnesses. Means of compulsion are specified as a distinct thing from penalties for non-attendance. Compare §§ 4291 and 4074, sub. 5; §§ 3747 and 3751 and § 3745. The application of § 4268 is probably limited to § 4266.

Parties may be examined as witnesses both under our laws and in New York.-Comp. L. §§ 4340, 4330, 3765; 2

IN THE MATTER OF ADAMS.

Mich. 397; 5 Mich. 65; N. Y. Code, §390. Proceedings in the New York courts bear a close analogy to proceedings in equity, where it has always been allowed to examine parties as witnesses. The commission was issued to take the testimony of petitioner as a witness, and the proceedings against him here have all been in that capacity. He is within the law and the reason of it.

If the witness had valid objection to any of the interrogatories, he should not have refused to be sworn, but should have waited till the improper question was put, before objecting.

The question of reasonable cause for refusing to be sworn was one addressed to the judgment of the commissioner, and if the warrant issued by him shows a prima facie case clearly within the statute, this is not the proper proceeding for reviewing his decision.-Niles v. Brown, 3 Barb. 39; People v. McLeod, 1 Hill, 399, 405; 2 Sandf. S. C. 724; People v. Nevens, 1 Hill, 159.

BY THE COURT:

We think the statute is designed to reach the case of general witnesses only, and that a party to a suit can not be punished under it for refusing to give his evidence, notwithstanding he might have been compelled to testify if within the jurisdiction issuing the commission. The prisoner must be discharged.

Cornelius O'Flynn v. Jabish Holmes and others.

Where, six months after errors had been assigned in this court, the defendant in error obtained an amendment to the record in the court below, with the view to obviate the errors assigned, and then moved this court for an order for a further return to bring up this amendment-Held, that he was too late in his action, and the application should be denied.

It seems that the proper practice, in such case, would be to apply to this court on affidavit showing the reasons for the amendment, to remit the record for

O'FLYNN v. HOLMES.

that purpose; and this court can then judge whether the case is a proper one to permit an amendment with a view to affect proceedings already taken in this court.

Heard and Decided November 29th.

Error to Wayne circuit.

The return to the writ of error was filed in this court April 1, 1859, from which it appears that judgment was rendered in the court below, November 26th, 1858, against plaintiff in error. The declaration was in assumpsit on the common counts only, and judgment taken by default. rors were assigned May 24th, the principal one being that the damages were assessed in the court below by the clerk, instead of by the court or a jury.

Er

D. J. Davidson, on affidavit showing that on October 29th, 1859, defendants in error had obtained an amendment of the record of the court below, so as to show that the plaintiffs' damages were asssessed by the court, moved for an order for a further return to the writ of error to bring up this amendment.

Holbrook & Bishop, contra.

BY THE COURT:

We think the defendants in error too late in their action, and the motion must be denied.

And we think also that where a party, after return has been made to a writ of error, desires an amendment to the record of the court below, for the purpose of taking advantage of the amendment here, he ought to first apply to this court for leave to have the record remitted for the purpose of amendment, and make a showing by affidavit of the reasons for it, that we may see whether the case is a proper one to allow an amendment with a view to affect proceedings already taken in this court.