People v. Judges of Cass Circuit Court. fect indorsement in respect to the subsequent holder. In this case, it appears to me the facts stated in the replication would be sustained by proof that the negotiation and delivery alleged were through the instrumentality of an agent. It is said by the counsel for the plaintiff in error, that there is no material fact in the replication upon which he could take issue. According to the rules of pleading, I see no difficulty in the way of putting in issue the whole matter of the replication, by taking issue upon the traverse in it, of a material fact contained in the plea (and such the traverse in this case seems to me to be), which would be by re-asserting the matter traversed, and concluding to the country; or, if that traverse were immaterial, then by re-asserting the substantive matter of the plea answered by the replication, and traversing the latter, and concluding to the country. Upon the whole, then, we deem the replication a sufficient answer to the plea, and the judgment should therefore be affirmed. Judgment affirmed. People ex rel. Markham v. The Judges of Cass Circuit Court. Under the justices' act of 1841 (S. L. 1841, pp. 112, 113), before a certiorari to a justice of the peace can regularly issue from the circuit court, the affidavit to procure the allowance thereof, and the allowance of the same indorsed thereon by a judge of this court, must be filed with the clerk of the circuit court; and if issued before such affidavit and allowance are filled, the cause will, on motion, be dismissed by the circuit court for want of jurisdiction. N. Bacon, for relator. 114 C. Dana, for defendant. Falkner v. Beers. Falkner v. Beers. Pleading the general issue to a complaint under the statute of forcible entry and detainer (R. S., 490, ch. 5, S. L. 1840, p. 83), is a waiver of irregularities in the summons and venire. (a) The contents of a notice to quit may be proved by secondary evidence, without notice to produce the original. A tenant holding over after the expiration of his term, cannot set up title to the premises in a third person, in defense of an action by his landlord to recover the possession. (b) Certiorari to two justices of the peace. This was a proceeding under the statute of forcible entry and detainer (R. S. 1838, p. 490, ch. 5), and the act amendatory thereto (S. L. 1840, p. 83), instituted by Beers, to recover possession of certain premises leased by him to Falkner, and which the latter held over, after the expiration of the term for which they were demised. On complaint filed, a summons was issued and duly served on Falkner, and also a venire, by virtue of which a jury was summoned in the cause. Falkner appeared on the return day, and pleaded the general issue, accompanied with a notice of special matter to be given in evidence on the trial. But, before proceeding to the trial, he moved to quash the proceedings, on the ground that both the summons and venire (which appeared, on their face, to have been signed by each of the justices before whom the cause was pending), were in fact signed and issued by one of them only. This motion was overruled on the ground that it came too late, after plea to the merits, and the cause proceeded to trial. On the trial, Beers offered to prove the contents of a (a) See Stewart v. Hill, 1 Mich., 265; Pardee v. Smith, 27 Mich., 33, 38. (b) Same principle affirmed: Byrne v. Beeson, 1 Doug., 179; Lee v. Payne, 4 Mich., 106, 120; Blanchard v. Tyler, 12 Mich., 339; Farmers & Mechanics' Bank v. Bronson, 14 Mich., 361; Ryerson v. Eldred, 18 Mich., 12, 22; Bertram v. Cook, 32 Mich., 518; Fuller v. Sweet, 30 Mich., 237; Wilkinson v. Green, 34 Mich., 221. Falkner v. Beers. notice to quit, served upon the defendant, by reading [118] in *evidence a copy thereof. This evidence was objected to, on the ground that Falkner had not been notified to produce the original. But the objection was overruled, and the copy read in evidence. Beers then gave in evidence a written instrument, signed by Falkner, dated September 17, 1841, reciting that he (Falkner) had hired the premises from Beers, for the term of one year from that date, at a certain rent therein specified; and containing a promise to make punctual payment of the rent, and to surrender the premises at the expiration of the term. And, having proved Falkner in possession after the expiration of the term, he rested his case. Falkner then offered to prove, in defense, that, as alleged in the notice appended to his plea, Beers had no right or title to the premises, and never had been in possession thereof; but that they were the property of the state of Michigan. This evidence being objected to by Beers, was rejected by the justices. The jury found a verdict in favor of Beers, on which judgment was rendered and restitution of the premises awarded. N. Bacon, for the plaintiff in error. C. Dana, for the defendant in error: If the summons was irregularly issued, the irregularity was waived by plea to the merits: Tifft v. Culver, 3 Hill, 180; Durham v. Hayden, 7 Johns., 381; Willoughby v. Carleton, 9 Id., 136. The evidence offered in defense was properly rejected: Doe v. Pegge, 1 T. R., 750; Mackey v. Mackreth, 3 Id., 14; 9 Wend., 147; Jackson v. Stewart, 6 Johns., 34; Woodfall, 397; 2 Binn., 471; 6 Wheel. Am. Com. Law, 380, 382, 383, 384. RANSOM, C. J., delivered the opinion of the court. A reversal of the judgment below is claimed by the plaintiff in error, on the ground: Falkner v. Beers. 1. That the justices improperly overruled his motion to quash the summons and venire. We have no doubt, however, that the motion was promptly denied. The defendant appeared, pleaded the general issue, and gave notice of his intention to prove special matter going to the whole merits of the controversy, before he interposed his motion to quash. He thereby waived all irregularities in the issuing of the process. When there has been any irregularity, if the party overlook it, and take subsequent steps in the cause, he cannot afterwards revert back to the irregularity: Grah. Pr., 702; 3 T. R., 7, 10; 2 Taunt., 243; 5 T. R., 464; 5 Taunt., 330; 2 B. & Ald., 373; 10 Johns., 486. 2. It is also objected that the justices erred in permitting a copy of the notice to quit, to be read in evidence. It is insisted that notice to produce the original, must have been given, before secondary evidence of its contents could have been received. Such, however, is not the rule. In Tillinghast's Adams on Ejectment, p. 313, it is said: "The contents of the notice to quit, may be proved by a duplicate original, which should be compared with the notice actually served, by the party serving it; but if this precaution is not taken, parol evidence may be given of its contents; and it is not necessary in either case to give the defendant notice to produce the original in his possession." 3. Again, it is contended that this judgment is erroneous, because the justices rejected the evidence offered by the defendant, to show that the plaintiff had no title to the premises but that the same was vested in the state. It is said to be a universal rule, that a tenant shall not be permitted to set up any objection to the title of his landlord; and this is not merely a technical rule, but one founded in convenience and policy, and it applies to all kinds of tenancy, whether for years, at will, or at sufferance: 117 Falkner v. Beers. 9 Wend., 147; 6 Am. Com. Law, 382; 1 T. R., 760; Till. Adams on Eject., 276, and notes (c) and 2. Falkner was the tenant of Beers, and entered into possession under a lease from him; and, having paid rent and enjoyed the premises, he is estopped from setting up a title against him. He could not set up a title in himself subsequently acquired, without first surrendering possession to his landlord; much less could he set up a title in a third party, under whom he claimed no right. We find no error in the record and proceedings, and the judgment below must be affirmed with costs.* Judgment affirmed. *Following is a brief report of a case between landlord and tenant, under the statute of forcible entry and detainer, which was decided at the January term, 1842, of the Supreme Court-Present, W. A. FLETCHER, C. J., and MORELL, WHIPPLE and RANSOM, Justices. CHAMBERLIN V. BROWN. The statute (R. S. 1838, p. 490, § 6) requires that a landlord should demand possession of premises, in writing, from his tenant, at least twenty days before summary proceedings, under its provisions, to recover the possession. Held, that a demand, requiring the tenant to quit the premises in ten days, but which was served twenty days before proceedings instituted, was sufficient. (a) Held, That a suit against a lessee, to recover possession of the demised premises, on account of the non-payment of rent, etc., was properly brought by the lessor in his own name, although he had previously assigned the rents to accrue under the lease, to a third person. In suits before two justices of the peace, under the statute of forcible entry and detainer (R. S. 1838, p. 490, ch. 5), and the act amendatory thereto (S. L. 1840, p 83), the jury are the judges, both of the law and the facts. Misdirection of the court to the jury, cannot, therefore, be assigned for error. But it may be assigned for error that the verdict is against the law. It seems that the jury are the judges of both the law and the facts, in all courts of special and limited jurisdiction, derived from the statute, and whose proceedings are regulated by the statute, and are not according to the course of the common law. Certiorari to two justices of the peace, to reverse a judgment rendered against Chamberlin, in a proceeding under the statute of forcible entry and detainer (R. S. 1838, p. 490, ch. 5), and the act amendatory thereto (S. L. 1840, p, 83), instituted by (a) Affirmed: Hogsitt v. Ellis, 17 Mich., 351. |