HALL V. NASH.

from receiving the money. If the principal distrusts him, he can pay the debt himself, as he ought to do at any rate. Without deciding that there are not cases where the Court will attend to the proper application of the money, we are very well satisfied that nothing in this case requires it. No such point is raised upon any allegation in the pleadings, and on the other hand it appears distinctly that complainants have taken up the notes. As it was a material question whether they continued in force, this testimony was not irrelevant, and, being in the case for other purposes, might properly be regarded upon any inquiry into the order to be made concerning the disposition of the fund, if such an inquiry is permissible upon proper averments. We are not called upon, therefore, to determine what control a court of equity may have over such matters, because no averment whatever could make its exercise proper in this case.

The decree must be affirmed, with costs.

MARTIN CH. J. and CHRISTIANCY J. concurred.

MANNING J.:

The bond is not one of indemnity merely. It is for the payment by Nash & Barstow of their own notes, on which Hall and Page were sureties, within thirty days after they should severally become due. The difference between such a bond and one of indemnity is, that the surety may pay the debt if it is not paid by his principal, and proceed to enforce the security to reimburse himself, without waiting till he is forced to pay it by the creditor, which he would have to do if the bond was one of indemnity only. The failure of the principal to pay at the day is a breach of the bond; but what are the damages of the surety for such breach? Are they, if he has not paid the debt, nominal merely? or are they the amount of the debt the principal is owing? It seems to me they are nominal and

HALL. NASH.

nothing more; as payment to the surety would not discharge the debt of the principal, who would still be liable to his creditor. There are cases where the debt is the measure of damages. As where the promise is to pay a debt the promissee is owing to a third person. In such cases payment to the promissee would discharge the liability of the promissor, who could not be compelled to pay a second time by the creditor of the promissee; and whether the debt is afterwards paid or not by the promissee, is no concern of his, as he is made to pay no more than he promised to pay. I doubt however the applicability of this rule of damages in cases like the one before us. Nor is it necessary to apply it in the present case, as the notes were paid by the sureties before the decree was entered. I liken the bill in this respect to one for the foreclosure of a mortgage payable in instalments, in which an instalment falling due after the bill is filed, and before decree, is included in the decree.

I concur with my brother CRMPBELL on the other point made in the case, and I think the decree should be affirmed.

The People on relation of Joseph Kuhn v. The Board of Auditors of Wayne County.

The Constitution having provided that the action of the Board of County Auditors in adjusting county demands should be subject to no appeal, the Supreme Court cannot revise their action by mandamus, and compel them to allow a demand which they have rejected on the ground that the services charged for were not performed.

Heard and decided June 6th.

Petition for a Mandamus. The petition showed that the relator was a justice of the peace of the city of Detroit; that he presented his bill for services as such Justice in criminal cases to the Board of Auditors of Wayne county, including therein certain charges for taking

THE PEOPLE . AUDITORS OF WAYNE COUNTY.

down testimony; his oath to the correctness of the whole being attached. These charges were largely reduced by the Auditors, on the ground of an overcharge in the amount of testimony taken down, and he now applies for a mandamus to compel them to allow the amount deducted. The petition having been read,

D. E. Harbaugh, Prosecuting Attorney for Wayne county, showed cause, but was stopped by the Court.

MARTIN CH. J:: Has this Court any jurisdiction to revise the action of the Board of Auditors, in this manner, when the Constitution expressly provides that their action in adjusting demands against the county shall be subject to no appeal?-Const. Art. 10 § 10.

G. E. Hand for the relator:

The constitutional provision has no bearing upon this

It is indispensible to justice that all inferior jurisdictions exercising judicial powers should be subject to the control of the Supreme Court, as otherwise the grossest injustice might be done without restraint. The Constitution should be construed with this fact in view. Constitutional as well as statutory provisions should be construed strictly when they infringe upon common right.-4 Mich. 326.

The word "appeal" as used in the Constitution has a special and limited meaning. Appeal is only one form of exercising supervision. Other modes of review, except this by appeal, strictly so designated, still remain to parties aggrieved. We must construe the word in the light of the former state of the law. An appeal to the Circuit Court then existed. This clause simply takes away that appeal.

Art. 6 of the Constitution makes a distinction between the appellate jurisdiction of the Supreme Court, and the supervisory jurisdiction to be exercised through the writ

THE PEOPLE . AUDITORS OF WAYNE COUNTY.

of mandamus. The word "appellate," as used in that article, has a technical meaning, and is not equivalent to the general jurisdiction of the Supreme Court. The foundation of the jurisdiction of this Court in many cases is the fact that there is no appeal.

The word "adjust" contemplates open and unliquidated claims against the county, and not those which are fixed by the statute. In any event, therefore, this case does. not come within the constitutional provision. The fees are fixed by the statute, and there is nothing to be adjusted, any more than there is in the case of interest on county bonds. In such a case the Court should compel them to perform their plain statutory duty.-3 Mich. 480; 8 Mich. 372. Upon claims like this, the duties of the Auditors are those of taxing officers merely.

MARTIN Cп. J.:

Our view of the question remains unchanged. It is clearly a case where we have no jurisdiction.

CAMPBELL J.:

to review the

This is a mere attempt to induce us action of the Auditors upon the facts. That could be nothing but an appeal. The case is very different from those in 3d and 8th Mich., where the amounts were liquidated. Here it was a question of fact whether the services were rendered or not. If the Auditors should wilfully or maliciously refuse to act upon the facts presented to them, there might be a remedy; but this is not that case.

Hand. But here the Auditors disregarded the evidence. furnished.

THE CHIEF JUSTICE:

These papers present simply the question whether the decision of the Auditors was correct upon the facts.

Motion denied, with costs.

THE PEOPLE . CLARK.

The People v. Charles Clark.

An information for a conspiracy to do an unlawful act must set forth the unlaw. ful thing agreed upon, but it need not specify the means to be resorted to for that purpose.

And therefore an information which charged defendant and a person unknown with having conspired "by divers false pretenses, subtle means and devices to obtain and acquire to themselves of and from one W. a sum of money, to wit the sum of ten dollars, of the moneys of said W., and to cheat and defraud him the said W. thereof," was held sufficient.

It is not essential to the offense in such case that the cheat designed be by means of a token, writing, or similar device.

Nor is it necessary that the means should be of any specific character.

The

crime may be complete notwithstanding the conspirators leave the particular means by which the fraud is to be accomplished to be determined by cir

cumstances.

Under an information for a conspiracy to defraud, if the conspiracy is proved the case is made out, whether any fraud was committed in pursuance of it or not. It is not essential that the pretenses by which a fraud is accomplished be expressed in words. Falsehood when deliberately acted is the same as spoken falsehood. Hoard May 2nd. Decided June 3d.

On Exceptions from the Recorder's Court of Detroit, where defendant was convicted on an information of which the following is a copy:

"State of Michigan, County of Wayne: January Term, A. D. 1862; Recorder's Court of the City of Detroit.

In the name of the People of the State of Michigan, I, David E. Harbaugh, Prosecuting Attorney in and for said county of Wayne, who prosecute for and on behalf of the People of said State in said Court, come now here and give the Court to understand and be informed, that one Charles Clark, and a certain other person to the Prosecuting Attorney, aforesaid, unknown, late of said city, on the 8th day of January, in the year of our Lord one thousand eight hundred and sixty-two, at the said city of Detroit, unlawfully, falsely, deceitfully, and fraudulently, did combine, conspire, confederate, and agree together, by divers false pretences, subtle means and devices, to obtain and acquire to themselves, of and from one John M. Whelpley, a sum of money, to wit, the sum of ten dollars, of the moneys