BENNETT v. ROBINSON. tion of landlord and tenant exists, and applies, so far as tenancies by sufferance are concerned, only to that particular class of them which arises from holding over after the expiration of a lease or term, and (by special provision) to lands sold on execution. This is sufficiently apparent from the judgment in Sims v. Humphrey, 4 Denio, 185, where the peculiarities of their statutes are set forth. It needs but a glance at our statutes in connection with the case just cited to show that the proceeding is not thus confined in this state, so far as tenancies by sufferance are involved. Now it is clear, within the decision of this court in Allen v. Carpenter, 15 Mich., 25, that Bennett remaining in possession after his conveyance to Nichols, became a tenant by sufferance to him, and that by the conveyance of Nichols to complainant the defendant became tenant by sufferance to the latter. And though the special unrecorded agreement between Nichols and Bennett might, as between them, have changed their relation to that of mortgagor and mortgagee in a modified sense, yet this, as already shown, did not affect the right of possession, which was in Nichols by the deed, and was conveyed to complainant by Nichols' deed to him. It is true, that whenever the continued possession of Bennett should have been clearly assented to by Nichols, or after him by complainant, so as to become clearly a holding by the assent, instead of the mere laches, of the owner, or mortgagee, the possession would cease to be wrongful (which a tenancy by sufferance to a certain extent always is), and the tenancy by sufferance would be changed to one at will. But whether any such change had taken place when this proceeding was instituted, is quite immaterial; since, for the purposes of this proceeding, the result would be precisely the same. Both kinds of tenancy are now required to be terminated in the same way, by a three months' notice. This was given, and was sufficient to terminate the tenancy, whether at will or by sufferance. BENNETT v. ROBINSON. The circuit court was, therefore, right in holding that the notice was good, though it may have called the tenancy by one name, when it may in fact have been the other.. It is not necessary to determine whether it was at the time one or the other. There was no error in the judgment or proceedings of the circuit court, and the judgment of that court must be affirmed, with costs to complainant in this and the circuit court. The other Justices concurred. Amasa M. Pardee v. James Smith. False imprisonment: Certiorari: Objections: Practice in supreme court. Where a justice's judgment in a suit against a justice of the peace for false imprisonment by the issuing of a warrant against the plaintiff, is brought to the circuit by certiorari and there affirmed, only such objections to the validity of the proceedings for the imprisonment, will be considered on error to review the determination of the circuit, as were passed upon in the court below. Capias: Civil suit: Irregularities: Jurisdiction: Waiver. In the case of a capias in a civil suit, irregularities or errors, however serious, if not jurisdictional, cannot be attacked collaterally; and such irregularities and errors may be waived by a failure to take advantage of them in time, so as not to be open to objection even in a direct proceeding to review the judgment. Whether, in an action for false imprisonment, where the proceedings for the arrest complained of were in fact criminal in character, but were treated by doth parties as civil, the court would be justified in holding the plaintiff to the same rules as if they were civil proceedings:- Quaere? Statute construed: Criminal proceedings: Judgment. Proceedings under the statute (Comp L. 1871, § 1998), to enforce a penalty for keeping billiard tables, etc., are criminal in character; the judgment provided for, being both a fine and security for good behavior, etc., for a year, is an entirety, and no right to prosecute separately for the fine is prescribed; such a judgment is peculiar to criminal remedies and quite foreign to those of a civil nature. Statutes construed: Civil suit: Judgment. Neither section 5268 nor section 6848 of the Compiled Laws of 1871 warrant the recovery of such a judgment in a civil suit. Statutes construed: Justice of the peace: Jurisdiction: Offenses. Justices of the peace have not jurisdiction to try and determine cases under the statute in question (Comp. L. 1871, § 1998); the statute (Comp. L. 1871, § 6525, sub. 8) 27 МІСН. -5. PARDEE v. SMITH. giving them authority to hear and determine "all other offenses punishable by fine not exceeding one hundred dollars, or punishable by imprisonment in the county jail not exceeding three months, or punishable by both said fine and imprisonment," does not include such an offense. Statute construed: Gaming: Complaint: Warrant: Justice of the peace: Examination: Prosecuting attorney. A complaint and warrant based upon this statute are to be construed as preliminary steps in a criminal procedure looking to an examination, as provided by chapter 259 of the Compiled Laws of 1871, and not to a trial before the justice; and the intervention of the prosecuting attorney is not essential to their validity. Complaint construed: Collateral attack: Jurisdiction. The complaint in question in this case, though not full, direct and precise in its statement of facts, or technically accurate, is held sufficient to give jurisdiction, and therefore not open to objection when attacked collaterally. An allegation in such complaint that the respondent "has incurred a penalty by the violation" of the statute (naming it by page and section) and that the billiard table was kept in his house, and was resorted to for play with his knowledge and consent, is a statement, by implication, and in argumentative form, that the table was kept in a house "by him actually used or occupied ;" and is not open to objection for want of jurisdiction on this ground, in a collateral proceeding. Heard January 13. Decided April 15. Error to Jackson Circuit. G. T. Gridley, for plaintiff in error. Johnson & Montgomery, for defendant in error. GRAVES, J. The plaintiff in error, Pardee, was a justice of the peace of the township of Spring Arbor, in Jackson county, and on the 26th of June, 1871, one John S. Patterson made to him in writing and on oath the following statement and representation: "STATE OF MICHIGAN, COUNTY OF JACKSON, ss. "John S. Patterson being duly sworn upon his oath, makes complaint and says that one James Smith has incurred a penalty by the violation of section 1588, chapter 44 of the Compiled Laws of the state of Michigan, on page 502; that the said James Smith on the first day of June, A. D. 18:1, and on divers other days and times since that, and is now at this date, at the township of Hanover, in said county of Jackson, engaged in keeping in his house, there situate, a PARDEE V. SMITH. table for the purpose of playing at billiards for hire, and that persons do resort thereto for the purpose of playing at billiards, with the knowledge and consent of said Smith, and this complaint is made for the purpose of having said Smith arrested for said offense. (Signed) "JOHN S. PATTERSON. "Sworn and subscribed to this 26 day of June, A. D. 1871. "By A. M. PARDEE, Justice of the Peace." The plaintiff in error thereupon issued a warrant directed to the sheriff or any constable of the county, and reciting the complaint, and then proceeding in the following terms: "And, whereas, on examination on oath of the said by me, the said justice of the peace, it appears to me the said that the said offense has been committed, and there is just cause to suspect the said Smith to have been guilty thereof; therefore, in the name of the people of the state of Michigan, you and each of you are hereby commanded forthwith to take the said James Smith and bring before me, the said undersigned justice of the peace, to be dealt with according to law. Given under my hand and seal, at Spring Arbor, in said county, on the 26th day of June, A. D. 1871. (Signed) "A. M. PARDEE, Justice of the Peace." The defendant in error, Smith, was arrested on this warrant, and taken before the plaintiff in error towards night on the 27th of June, and at once informed Pardee that he was ready for trial; but Pardee informed him that it was then late, that the complainant was not there, and that the business could not go on then. The case was accordingly then postponed by Pardee, and Smith was left in the custody of the arresting officer. The record fails to disclose all that occurred on this occasion, and it does not appear from it whether Smith consented to the postponement or not, or whether he made any objection to being left in the care of the officer. There are some indications that Pardee proposed that bail PARDEE v. SMITH. should be given and that Smith declined, but they are faint and unimportant. On the 29th of June, Smith appeared, attended by Mr. Snow as his counsel, and another gentleman of the bar appeared and responded for the people. At this time Smith's counsel objected to the proceedings on the ground that the word "billiard" in the warrant was spelt with one "1" instead of two; and this objection, which was overruled, seems to have been the only one raised by Smith. The way was then deemed open for further proceedings, and without any question on either side as to the propriety or regularity of such a course, a declaration was filed in the name of the people, founded on the law mentioned in the complaint, but in the form of indebitatus assumpsit, and alleging a promise by Smith to pay the people one hundred dollars; and to this, Smith pleaded the general issue. Thereupon on his motion the case was adjourned until the 8th of July, and at which time, also on his motion, a jury was called, and the issue on the declaration and plea was tried, and a verdict found against him for eight dollars damages, upon which judgment was entered. None of these proceedings appear to have been appealed from or disturbed. About two days after this judgment, Smith brought an action against Pardee before another justice, in the form of trespass for false imprisonment, and counted upon his arrest and custody under the before mentioned warrant as his actionable grievance. He recovered twenty-eight dollars damages and his costs. Pardee obtained a review of this judgment in the circuit court by certiorari, and the judgment was affirmed. He then sued out this writ of error. The correctness of the judgment of the court below is admitted to depend upon the validity of two objections brought against the early proceedings in the case against Smith, and it is not contended that the judgment against Pardee can be supported if such objections ought not to prevail. |