to one running to bearer. This was done on account of the death of Walsh, and at the request of his former clerk, so that there would be no trouble with the bank when the check was presented. Of course no such change in the check would have been necessary if Thomas Walsh had a partner when he died, and this circumstance, undisputed as it is, would seem to be sufficient to put the defendant on his guard as to the real person with whom he was dealing, or sufficient to lead him to make inquiry.

It appears further that the defendant had had dealings several years with Walsh previous to his death; and that after his death, and while the crape was still hanging upon the door of his place of business, which was not over 90 or 100 feet from the defendant's store, the defendant should make purchases at the deceased's place of business to the amount of between $3,000 and $4,000, without knowing from whom he was purchasing, and to whom he could legally make payment, seems almost incredible. The defendant's manager, Nye, certainly had some knowledge of the situation and of Walsh's death, and ordinary business prudence would require that the defendant and his manager should know with whom they were trading after the death of Walsh. Every creditor Walsh left was interested in the property and its disposition, and no person could acquire any title thereto, either legal or equitable, except through administration, the estate being insolvent.

In a state where there is no statute prohibiting the use of a name or an abbreviation to do business under, other than that of the individual, as in this state, there is no necessary presumption that, when "& Co." is made use of after the dealer's name, he has a partner or partners, or that such title includes more than one person. Robinson v. Magarity, 28 Ill. 423. The plaintiff's right to recover was not limited in this case to the goods actually owned by Walsh, but to those the defendant received of the estate, which were held by Walsh in his life-time for sale on commission, as well. The owners had never proved claims for them against the estate before commissioners. Cullen v. O'Hara, 4 Mich. 133; Emery v. Berry, 8 Fost. 483; Campbell v. Tousey, 7 Cow. 64; White v. Mann, 26 Me. 361; Hubble v. Fogartie, 3 Rich. 413; Whit v. Ray, 4 Ired. 14; Sharland v. Mildon, 5 Hare, 469; Edwards v. Harben, 2 Term R. 596.

There being no delivery or acceptance of such of the goods as defendant claims came to him through the auction sale, he had no more right to detain those from the plaintiff than the others. We can discover nothing in the record that would enable the defendant to prevail against the claim of the plaintiff, and the direction given by the circuit judge must be sustained. The judgment is therefore affirmed.

CHAMPLIN, J I concur in affirming the judgment. MORSE, J., concurred in affirmance.

PEOPLE v. GREISER.

(Supreme Court of Michigan. November 3, 1887.)

INTOXICATING LIQUORS-PAYMENT OF MANufacturer's Tax-Sale at RETAIL.

Defendant manufactured beer, and sold the same at wholesale and retail. She had paid the manufacturer's tax, and this, by How. St. Mich. 1281, exempted her from paying a wholesale tax. She paid no retail tax. The amount of tax for "selling at wholesale," "selling at retail," or "selling at wholesale and retail," is the same. Held, that defendant was not authorized to sell at retail.

Appeal from recorder's court of the city of Detroit.

John G. Hawley, for appellant. Geo. F Robison, Pros. Atty., for the People.

MORSE, J. The respondent was convicted in the recorder's court for the city of Detroit, for selling beer at retail without paying the tax in full in ad

vance to the county treasurer, as required by section 1281, How St. The respondent is a brewer and manufactures beer at the corner of Sherman street and St. Aubin avenue, in the city of Detroit. She sells on the premises, where the beer is brewed, at wholesale and retail, beer of her own manufacture. She had paid the manufacturer's tax, but no wholesale or retail tax. It is claimed that as the payment of a manufacturer's tax exempts the person so paying from the payment of the wholesale tax, it also exempts her from paying the retail tax, as the amount of the tax for selling at wholesale is the same as the tax for selling at wholesale and retail. The statute as to the manufacture and sale of malt liquors provides the following taxes: First. Upon the manufacture, if less than 1,500 barrels, $65 per annum. Second. Selling at wholesale, $200. Third. Selling at retail, $200. Fourth. Selling at wholesale and retail, $200. "No person paying a manufacturer's tax on brewed or malt liquors under this act shall be liable to pay a wholesale dealer's tax on the same. 99 How. St. § 1281.

The argument seems to be in the brief of respondent's counsel that because the payment of the manufacturer's tax excuses the payment of the wholesale tax, and the wholesale tax, being the same in amount as the tax for selling at wholesale and retail, the tax for selling at wholesale and retail is in effect a wholesale dealer's tax. We do not so consider it. The legislature evidently intended that the manufacturer might sell at wholesale as an adjunct of his business without paying an additional tax. But it was not intended he might also sell at retail, which is not a necessary part of the business of manufacturing. If the intention had been different, the legislature would, in all probability, have exempted the manufacturer from paying the wholesale and retail tax in so many words. We must take the law as it reads. It does not authorize the manufacturer to sell at retail, unless either the retail or the wholesale and retail tax is paid, to-wit, $200.

The conviction is affirmed.

SHERWOOD and CHAMPLIN, JJ., concurred. CAMPBELL, C. J., did not sit.

PEOPLE v. KUHN.

(Supreme Court of Michigan. November 3, 1887.)

1. CRIMINAL PRACTICE-FORMER JEOPARDY-NOL. PROS. BEFORE JURY IMPANELED. A nolle prosequi to an information will not operate as an acquittal where no jury has been impaneled in the case.1

2. SAME-PRELIMINARY EXAMINATION-FUGITIVE FROM JUSTICE.

Defendant was convicted of a crime and sentenced to imprisonment. An information for another offense was then pending against him, but this, on his incarceration, was nolle pros'd. He escaped from prison, and fled to Canada. Another information on the second offense was then made, and on this, after his extradition, he was tried without examination before a magistrate. Held, that defendant was a "fugitive from justice" within the meaning of a statute (How. Mich. St. į 9555) providing that informations may be filed, without preliminary examination, against fugitives from justice.

Error to recorder's court, city of Detroit.

Geo, Y. M. Collier, for defendant, appellant. Moses Taggart, Atty. Gen., for the People.

CHAMPLIN, J. Frank Kuhn was convicted in the recorder's court of the city of Detroit on the twenty-first of February, 1882, of assault with intent to commit the crime of rape, and was sentenced to the state house of correc

1 Where the defendant in a criminal case obtains a new trial the prosecuting attorney, with the consent of the court, may enter a nolle prosequi to the information without prejudice to a fresh prosecution. State v. Rust, (Kan.) 3 Pac. Rep. 428.

tion and reformatory, at Ionia. At the time of his conviction there was also an information pending against him in the same court for the crime of robbery. He was committed to the prison at Ionia, and between one and two months later the prosecuting attorney of Wayne county, of his own motion, ertered a nolle prosequi to such information for robbery. About March 1, 1885, Kuhn escaped from prison and fled to the Dominion of Canada. In April, 1885, the prosecuting attorney filed a petition in the recorder's court, setting up the facts as above stated, and alleging that said Frank Kuhn was a fugitive from justice, and asked leave on such sworn petition to file an information under section 9555 of Howell's Statutes, which was granted, and such information was filed, containing an allegation that said Frank Kuhn was "a fugitive from justice of the state of Michigan, and is sojourning in the jail of the county of Essex, in the Dominion of Canada, awaiting an examination on a complaint in this matter before an extradition commissioner of said Dominion." Kuhn was extradited on the charge of robbery for which the information was filed, and on being arraigned interposed a plea in bar setting up his conviction and sentence above stated, and commitment, and also that the information filed against him for robbery was nolle prosequi'd, at which time he was serving his time at the state house of correction upon the sentence given upon the conviction for assault with intent to commit a rape, and that he had not been examined upon any charge for any offense since the said nolle prosequi was entered. This plea was overruled, and the defendant required to plead to the information, which he refused to do, and thereupon the court ordered a plea of not guilty to be entered. He was tried and convicted. The court thereupon sentenced him to confinement in the state house of correction and reformatory, at Ionia, at hard labor for the period of five years.

The case is brought here by writ of error. Section 9555, How. St., reads as follows: "No information shall be filed against any person for any offense, until such person shall have had a preliminary examination thereof as provided by law before a justice of the peace, or other examining magistrate or officer, unless such person shall waive his right to such examination: provided, however, that information may be filed without such examination against fugitives from justice; and any fugitive from justice against whom an information shall be filed, may be demanded by the governor of this state of the executive authorities of any other state or territory, or of any foreign government in the same manner, and the same proceedings may be had thereon as provided by law in like cases of demand upon indictment filed." Two questions are raised upon the record-First. Did the nolle prosequi entered operate as an acquittal of Kuhn upon the information filed against him upon the charge of robbery? Second. Was Kuhn at the time the information in this case was filed by leave of court a fugitive from justice within the meaning of the above section? We think the first question must be answered in the negative. A nolle prosequi to an information will not operate as an acquittal where no jury has been impaneled in the case. Upon this the authorities are agreed. 1 Whart. Amer. Crim. Law, § 513, and cases in notes; State v. Lopez, 19 Mo. 255, 256; State v. Rust, 31 Kan. 509, 3 Pac. Rep. 428; Com. v. Wheeler, 2 Mass. 172; 1 Bish. Crin. Law, §§ 1014-1016. The second question must be answered in the affirmative. A person who commits a crime within a state, and withdraws himself from such jurisdiction without waiting to abide the consequences of such act, must be regarded as a fugitive from justice of the state whose laws he has infringed." In re Voorhees, 32 N. J. Law, 141. When Kuhn escaped from the prison at Ionia, and fled to Canada, he was a fugitive from the justice of this state. He had committed a crime for which he had not been tried; and it matters not that he had escaped from prison before his sentence had expired, and became a fugitive, -he retained his character as such, and his escape formed no obstacle to his extradition and trial for the

crime of robbery. It is true that he committed another offense by escaping from prison, but a multiplication of crimes for which he may be hereafter punished cannot operate to shield him from being brought to the jurisdiction of the state to stand trial for a crime committed before he escaped from prison and fled from justice. It follows that under the statute no previous examination before a magistrate was required.

There was no error in the record, and the judgment is affirmed.

SHERWOOD and MORSE, JJ., concurred. CAMPBELL, C. J., did not sit.

PEOPLE v. CAULKINS.

(Supreme Court of Michigan. November 3, 1887.)

RECEIVING STOLEN GOODS-REQUISITES OF INFORMATION-JUDGMENT.

In a prosecution for receiving stolen property, knowing it to have been feloní-ously stolen, it is not necessary for the information to allege that the prosecution is for a first offense of that character, nor that the act of stealing the property received by defendant was not a simple larceny, nor that defendant has made no restitution or satisfaction of any kind to the owner of the property. Nor, when judgment follows upon a plea of guilty, need any of these matters appear in the judgment.

Error to circuit court, Hillsdale county; ANDREW HOWELL, Judge. Allan Howard Frazer, for defendant, appellant. Moses Taggart, Atty. Gen., for the People.

CHAMPLIN, J. Defendant was convicted upon his plea of guilty to an in-formation charging him with receiving stolen property of the value of $25, knowing it to have been feloniously stolen. He had the aid of counsel before entering the plea, and, after a private examination as required by statute, the circuit judge sentenced him to imprisonment in the state prison at Jackson for the term of four years. By another counsel he sued out a writ of error, and afterwards, upon an application to, and allowance by, the chief justice, a writ of certiorari was issued to the circuit judge, who has made return negativing all the material facts stated in the affidavit for the writ upon which the allegations of error were based.

It is now assigned as error that there is no allegation or averment of any kind in the information: "(a) that defendant's conviction of receiving stolen property was other than a first conviction for a like offense; (b) that the act of stealing said stolen harness received by defendant, and for which he was convicted, was not a simple larceny; and (c) that defendant made no restitu-tion or satisfaction of any kind to the party from whom the harness received by defendant was stolen; nor is any of said matters a, b, and c set forth in said information. (2) Nor are the same things above mentioned, or any of them, entered or contained in the judgment of said court in said case, or in any of the proceedings therein. (3) Nor is there any inquiry, finding, or determination of any kind by the court, or by a jury of record, or otherwise, showing any or all the matters set forth in a, b, and c, above mentioned."

It is not necessary that the information should contain any allegation of the kind specified in the first assignment of error. These are all matters which are proper to be brought before the court by the defendant, and go in mitigation of the punishment to be inflicted. Unless charged as a second offense it is presumed that the prosecution is for a first offense. The judgment followed upon the plea of guilty, and it was not necessary that any of the matters alleged in the first assignment of error should appear in the judg-ment.

No error appearing upon the record the judgment is affirmed.

SHERWOOD and MORSE, JJ., concurred.

CAMPBELL, C. J., did not sit.

PEOPLE v. GOBLES.

(Supreme Court of Michigan. November 3, 1887.)

1. CONSTITUTIONAL LAW-TITLE OF ACT-INCORPORATION OF CITY MUNICIPAL COURT NECESSARY INCIDENT.

A statute entitled "An act to incorporate the city of Kalamazoo," is not unconstitutional because it provides for the organization of a recorder's court in such city. The establishment of municipal courts is one of the necessary things in the incorporation of cities, and does not infringe the constitutional provision against legislation on subjects not embraced in the title of the act.

2. CERTIORARI-TITLE TO OFFICE OF JUDGE CANNOT BE COLLATERALLY TRIED BY.

The title of a person to the office of judge of the recorder's court of a city cannot be tried in a collateral proceeding arising by way of certiorari to his judgment as such recorder, it not being alleged that any other person is the duly elected and qualified recorder.

3. COURTS-CITY RECORDER-Power to SENTENCE TO HOUSE OF CORRECTION.

A city recorder (having the same jurisdiction in criminal cases as a justice of the peace) before whom a person is tried and convicted of a misdemeanor, triable by a justice, and punishable by "imprisonment in the county jail * not more than ninety days," cannot sentence such person to imprisonment in the state house of correction, notwithstanding the act creating such house of correction, which was earlier in time than that creating the specific offense charged, provides that "all courts having criminal jurisdiction may sentence" to imprisonment in it "all male persons duly convicted before them of a misdemeanor, when the imprisonment shall not be less than ninety days." How. St. Mich. ? 9755.

Error to circuit court, Kalamazoo county; ALFRED J. MILLS, Judge. O. T. Tuthill, for defendant, appellant. Moses Taggart, Atty. Gen., and Frank E. Knappen, Pros. Atty., for the People.

CHAMPLIN, J. Complaint was entered against respondent before the recorder of the city of Kalamazoo for furnishing liquor to Nellie Rafter, a minor of the age of four years, said respondent not being a druggist. He was arrested and convicted, and removed the record into the circuit court for the county of Kalamazoo, where the judgment was affirmed. The errors assigned in the affidavit for certiorari (being the same which are assigned here) raise three questions of law. (1) The recorder had no authority to hear, try, and determine the case. (2) The recorder had no authority to sentence the respondent to be confined in the state house of correction and reformatory at Ionia. (3)· The offense of which respondent was convicted was not such as authorized a sentence to the prison aforesaid.

The respondent claims that the recorder had no jurisdiction to act in the matter because he was elected to fill that place under an act of the legislature constituting and organizing the recorder's court, being Act No. 337, Sess. Laws 1883. The legislature in 1885 substantially re-enacted that portion of Act No. 337 organizing the recorder's court. The material changes consisted in omitting a clause in the former act which declared the recorder's court to be a court of record, and in giving to the recorder exclusive jurisdiction in cases of bastardy arising within the city. It also contained this provision: "All acts heretofore done under and by virtue of chapter 16, Act No. 337 of the local acts of the legislature of the state of Michigan, passed at the regular session of 1883, are hereby declared valid, and nothing in this act contained shall affect the term or title to the office of the recorder heretofore elected by the city of Kalamazoo." The argument of counsel for respondent is that the act of 1883 was unconstitutional, for the reason that it was entitled "An act to incorporate the city of Kalamazoo," and the organization of the recorder's court was not embraced in the title of the act. But this would not render the act unconstitutional. The establishment of municipal courts in the organization of cities is one of the necessary things in the incorporation of a city, and does not infringe the constitutional provision. Hargrave v.