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DENNIS V. PEOPLE.

above the door, which was fastened, and the only question in the case is upon an exception to the charge in relation to the breaking. The window closing the opening above the door was attached by hinges above and was arranged to fall into the frame by its weight. It was provided with a spring bolt at the bottom to pass into a mortice in the frame for the purpose of fastening.

It appears from the evidence that during the night in question the window was hanging down but not fastened, and not so far in the frame as to allow the bolt to catch. A witness for the people stated that it was hanging down, but projected out of the frame at the lower edge, from a sixteenth to a quarter of an inch. Upon this evidence the court instructed the jury that in order to convict if they found that the defendants entered through the window, they must be satisfied beyond a reasonable doubt that the window was shut into the frame so as to require some force to open it, and that the defendants shoved it open, and that if the window was open or swinging, the breaking was not proved. The assignment of error is directed to this charge.

I think the instruction was correct in point of law, and that there was evidence to which it might apply. The question was therefore one for the jury upon the interpretation of the testimony, its evidentiary value and weight; and we have no right to revise their action.

The window was above the door and suspended by hinges, and the jury must have found that it was sufficiently closed within the frame to require force to open it, though not as far back in the frame as it was intended to go.

If an entry is effected by raising a trap-door which is kept down merely by its own weight, or by raising a window kept in its place only by pulley weight, instead of its own, or by descending an open chimney, it is admitted to be enough to support the charge of breaking; and I am unable to see any substantial distinction between such cases and one where an entry is effected through a hanging window over a shop door, and which is only designed for

DENNIS . PEOPLE.

light above and for ventilation, and is down and kept down by its own weight, and so firmly as to be opened only by the use of some force, and so situated as to make a ladder or something of that kind necessary to] reach it for the purpose of passing through it.

I think the judgment should be affirmed.

The other Justices concurred.

Charles Greeley and others v. John Stilson and

another.

Trover: Transitory action: Timber: Trespasser. Trover is a transitory action; and an action for the conversion of timber is not made local by being brought against the original trespasser who cut the trees.

Change of venue: Discretion. A motion to change venue is discretionary and not subject to review on error.

Value: Opinion: Different markets: Presumption.

The value of logs at one

place cannot be proved by the opinion of a witness having no knowledge of values there, and showing no facts from which it could be got at as compared with values elsewhere. Knowledge of one market justifies no presumption of knowledge of others.

Conversion: Damages: Value. Defendants who have sold property and are sued for its conversion, are not liable for value beyond what it would have been before, or at the time and place of conversion. Value subsequently and else where is not material.

Timber: License: Statute of frauds. A parol license to cut timber for a fixed price for stumpage is not invalid, and is not covered by the statute of frauds, either as a sale of an interest in lands, or as a sale of chattels; and the licensee is protected by it in regard to all trees cut before revocation.

Charge to the jury: License. It is error to leave it to a jury to determine whether such a transaction is a license or sale. It can be nothing but a license.

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GREELEY V. STILSON.

CAMPBELL, J.

Plaintiffs in error were defendants below, and were sued in trover for the conversion of certain logs claimed to have been cut from lands of Stilson & Stevens, in Alpena county. Judgment was recovered against them in the circuit court for St. Clair county.

A motion for change of venue was made in the court below, based upon the ground that all the transactions took place in Alpena county, and on the further ground that defendants had been fraudulently subpoenaed into St. Clair county, and then served with process in this suit. The case had been tried before, but no verdict had been found.

A motion for change of venue is, unless where otherwise provided by law, a matter which rests in discretion, and is not subject to review. A fraudulent use of process may be punished, and relief may be granted, where it is brought in proper time to the notice of the court. But after plea and trial any legal claim to rely upon the misconduct in the service was no longer beyond the ordinary discretion of the court.

But the question was further raised on the trial whether an action of trover for logs cut and carried away from land in Alpena county and sold in that county can be lawfully brought in St. Clair county.

The statute makes actions for trespass on lands, and for injuries to lands, local. Both trespass and waste would come under such a restriction, and there is much force in the claim that the testimony which would be given in those actions would be the same as that in trover for the conversion of the same property, in the most important respects.

A difference has been recognized, however, arising out of the fact that until the timber has become personalty, by being severed from the soil, it is not subject to conversion, and that wherever it may be moved in an unmanufactured form, whether in the same or in another county, a conversion

GREELEY v. STILSON.

may be charged as taking place where it is sold, or otherwise disposed of or appropriated, as well as on the first removal. Treating it as no longer freehold when it has become personalty, the law distinguishes actious for its conversion, from those for the act whereby it became changed from realty, and puts all suits for the wrongful conversion of chattels on a similar footing, and makes them transitory. The distinction is technical, but it seems to be well established. This action, therefore, was legally brought in St. Clair county.

To prove the value of the logs, one of the plaintiffs, John Stilson, was asked what it would be, without having been previously examined as to his means of knowledge. This was objected to, and being admitted, defendants excepted. On cross-examination he said he did not know of any logs being sold for the price mentioned; that he was not delivering any logs that year, and did not know the market price of logs at Alpena that year. He was then allowed, under objection and exception, to state on reexamination that he got at the value from the quality of the timber and the market value of timber at Alpena. Being further asked, under similar objection, what were his means of knowing the value of lumber at Port Huron, Alpena, Saginaw and other places, he answered, by inquiring that year; that his business was getting out saw-logs, and had been for fifteen years, at Port Huron and Saginaw. His means of getting at the value of logs were, that he inquired the price of lumber at Alpena, and he stated he did not know how far Alpena was from Saginaw or Port Huron.

As the defendants sold the logs, they were chargeable for their value at the time and place of sale, but no later; and this value, therefore, was necessary to be shown. When the witness was first sworn he had shown no knowledge of any kind. On his cross-examination he stated explicitly that he did not know the market value of logs at Alpena, and where the conversion relied on is a sale, the value is

GREELEY V. STILSON.

the only admissible test. The price obtained by the defendants would be admissible against them, though not binding in their favor. He does not, on his re-examination, show any knowledge of the value of logs at that point. He does not show that he had any knowledge of the cost of manufacturing at Alpena, nor, if he had, does he show that logs could be sold for the price of lumber less the cost of sawing, or what were the usual sawyer's profits, if any. It cannot be presumed without proof, that a knowledge of one market implies a knowledge of another in logs any more than in other articles. It was held in

Gilbert v. Kennedy, 22 Mich., 117, that evidence of value in other markets, where the value in the home market was the test, could not be given unless it should also appear how far they operated to affect the home market. In Powers v. Irish, 23 Mich., 429, it was recognized as improper to attempt to prove a Chicago value for lumber on the Grand River. And it is impossible to assume, without distinct testimony, that any one can know the value of logs in a particular market without knowing actual prices or estimates in that market. He gives no values or data for getting at any of the elements on which he professed to act, either of the cost of sawing, the value of lumber, or the prices or cost of logs or lumber elsewhere. His testimony, therefore, stood in the case as a basis of recovery, without any showing that his opinion was admissible. The charge did not cure the defect, but left it to the jury with assurances that they might follow it. This testimony

should not have been received.

Several errors are alleged upon the charge given by the judge apart from his rulings upon the requests of the various parties, but as this charge is not confined to one subject, but covers a number of independent questions, the single general exception to it is not sufficient to bring it up. The charge can not be examined at all, except as to such parts of it as respond to the specific points presented to him for rulings, or were meant to explain them.

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