EVERS v. SAGER. But the defendant, by his consent to the amendment, could not bind the sureties on the appeal. They undertook by their recognizance to abide the result of the case which was appealed, and any radical change in the case, made without their consent, would discharge them. If the court had possessed the power to order or allow such an amendment irrespective of the stipulations of the parties, the sureties would have been bound by its action, because their obligation must be understood as contemplating a possible exercise of such power; but it could not be understood as making them responsible for such acts of their principal as are not contemplated by the statute, and such as could only bind him personally on the principle of estoppel. The undertaking of the sureties is strictissimi juris, and is not to be enlarged by a proceeding of this nature, probably had without their knowledge, and which would operate as a fraud upon them if it could bind them. The judgment as to them must be reversed, with costs of this court. The remaining question relates to the costs which were awarded below. The statute (Comp. L., § 7388) provides that in certain actions, among which is that for assault and battery, the plaintiff shall recover no more costs than damages. The court awarded full costs, amounting to $238 16 though the recovery of damages was ten dollars only. We are of opinion that the section of the statute referred to has no application to a case tried on appeal. The statute relating to appeals provides that "In all cases heard and determined on appeal, the costs, or such part thereof as to awarded to either party, the court shall seem just, may be as the court may deem just and right between the parties, in view of the particular circumstances of each case."Comp. L., § 5459. We think this means all the costs, and not merely such portion thereof as does not exceed the damages found. The policy of the law is to give the circuit courts a large discretion as to costs in cases of appeals, and one purpose had in view is the discouragement of vexatious appeals. That purpose would be defeated, if in cases EVERS v. SAGER. like the present, the defendant could remove the case from the justice's court with a reasonable assurance that the litigation would be largely at the expense of the party he had wronged, and who, in seeking a remedy, had shown no disposition to make it oppressive, but had sought the court of least jurisdiction and least expense, and been content with the small award made him there. It was not the plaintiff, but the defendant, whose litigation appears to have been found vexatious in this case, for the verdict was increased in the circuit court, and the jury by increasing it in effect expressed their own opinion that the appeal was without good reason. To deny the plaintiff costs in such a case, would be to visit him with a penalty which the reason of the law could not possibly apply to his case. We think the judgment as against the principal defendant below should be affirmed, with costs. It will be ordered accord ingly. There is nothing in the objection of the defendant in error, that the judgment as to the sureties should have been removed to this court by certiorari, instead of by writ of error. A joint judgment was taken against them and their principal, and the mode adopted to review it was the only one applicable to the case. The other Justices concurred. Gideon T. Beebe and another v. Hubbard Knapp. Pleadings: Declaration: Deceit: Scienter : Assumpsit: Trover: Misjoinder. The first count in the declaration in this case, setting forth the exchange of a span of horses of the plaintiff's for a note held by defendants and a certain sum of money, and alleging that the defendants, by warranting, pretending and representing the note to be good and the maker to be responsible, falsely and fraudulently sold and exchanged said note and said sum of money for said span of horses, etc.; that the note was not good nor the maker responsible, BEEBE v. KNAPP. and that by means of the premises the plaintiff has been deprived of the use of his horses, etc., is not open to the objection that, inasmuch as it does not allege a scienter on the part of the defendants, it must be treated as a count in assumpsit upon contract, and is therefore improperly joined with the second count, which is an ordinary count in trover for the same horses; the statement that the defendants falsely and fraudulently represented the note to be good, etc., certainly implies sufficient knowledge of the falsehood of the representations to render them liable for the consequences of the fraud, and is at least an argumentative allegation of defendants' knowledge, such as, in the absence of a demurrer, would be cured by verdict. Conspiracy to defraud: Acts and statements of one conspirator: Evidence. The evidence in the case tended to show that both defendants, in making the trade with the plaintiff, acted in concert, with a common purpose to obtain his team for the note and a small sum of money, without any good reason to believe the note to be good or their representations to be true, and that both were jointly interested in the trade: and this would authorize evidence of the acts and statements of either in regard to any part of the transaction or subject matter, as the acts, representations and statements of both, though done or made in the absence of the other. Evidence: Statements of third person referred to for information. One of the defendants having referred the plaintiff to the maker of the note in question for information, any statements made by him in reference to the note at that interview are as much a part of the res gesta as if made in the defendants' presence, or even as if made by themselves. False representations: Reliance: Evidence. It was not error to allow the plaintiff to testify that he relied upon the representations and believed them to be true, as this was a vital point in the case upon which his knowledge exceeded that of any one else. Tender: Evidence. The objection to permitting the plaintiff to testify that he made the tender of the sum of money received by him of defendants, in legal tender greenbacks, for the reason that the only proper course was to produce the thing tendered, is not well taken. Representations: Evidence: Quo animo. Statements and representations of one of the defendants, made about the same time, a little before and a little after the trade with plaintiff, concerning other notes made by the same person, and his responsibility, in attempts to trade them off for horses and other property, are held admissible as showing the quo animo. Conspiracy: Acts of third person: Quo animo. Evidence also of the representations and transactions of a third person who was present when the trade with plaintiff took place, made and had, both while accompanied by one of the defendants, and when alone, concerning these notes, and the maker thereof, going to show that he and defendants were acting in concert in dealing in these notes with a common design to defraud whomsoever they might deceive into trading for the notes, are held admissible on the same ground. Conspiracy: Combinations to defraud: Evidence. In cases of conspiracies or combinations to commit a fraud it is difficult to draw any precise line between the relevant and the irrelevant; and all evidence must be held admissible which has any tendency to prove the conspiracy or combination and its nature and objects, so far as these can have any bearing upon the issue on trial. Evidence: Cross-examination. Where a witness in his direct examination has testified in reference to a promissory note on which he says the holder at a certain interview requested payment, that he thought the note was not due at the time, and has identified the note, it is competent on cross-examination to read the note itself in evidence, to show that it was past due at the time, as tending to show the imperfection of his memory, and thus to affect his credit. Tender: Evidence. Where two persons are both interested, a tender to either is sufficient, especially if both are present; and the question whether the tender was to one, or the other, or both, was a fair one for the jury if material. Tender: Greenbacks: Fractional currency. A tender made in greenbacks and fifty-cent fractional United States currency is sufficient where no objection was made to the tender on this ground at the time. Evidence: Cross-examination: Quo animo: Errors that do not prejudice. On cross-examination of one of the defendants who had testified that he had sold some other horses for which he had traded other similar notes, it was competent to ask him what he got for the horses; if he had sold them soon after their purchase for less than he had paid for them in such notes, it might tend to show knowledge on his part that the notes were not good, and thus to show the quo animo of the trade with plaintiff; but if not strictly admissible, it was simply impertinent, having no bearing upon the case, and could not possibly have injured the defense; and the answers elicited could have no such effect. Cross-examination: Past life and conduct of witness : Discretion. On crossexamination the trial court must be allowed considerable latitude of discretion in permitting questions calculated to elicit any information as to the past life and conduct of the witness, and to enable the jury to see "what manner of man he is;" and it is held not erroneous in this case to have permitted certain questions of this character, although in the opinion of this court it would bave been a wiser exercise of discretion to have excluded them. Cross-examination: Errors that do not prejudice. The admission on cross-examination, of questions not strictly admissible, is not error for which a judgment will be reversed, where the answers were harmless to the party objecting, and could not have prejudiced them. Cross-examination: Credit of the witness. It was error to permit a witness who had not been connected with the defendants in the alleged conspiracy or com bination, to be asked on cross-examination, against objection, what he got for certain other similar notes he had, where the direct examination had not touched upon the subject; since the evidence might, perhaps, have affected the credit of the witness with the jury, as tending somewhat to show a bias on his part in favor of the defense. Trover: Fraud: False representations: Scienter: Deceit. To maintain the count for trover in this case, it was not necessary for the jury to find that the defendants knew the representations as to the note and the maker thereof to be false, provided they found "that they believed them to be false, or that they made them recklessly, without any knowledge or belief as to the truth of what they represented, intending to deceive and defraud the plaintiff." Deceit: Fraud: False representations: Scienter: Recklessness. To maintain an action for the deceit in making false representations, upon the faith of which another has acted, it is not necessary to show that the party making them knew them to be false, if made for a fraudulent purpose; if a party recklessly makes a false representation, of the truth or falsehood of which he knows nothing, for the fraudulent purpose of inducing another, in reliance upon it, to make a contract or do an act to his prejudice, and the other party does so rely and act upon it, the party making the representation is liable for the fraud as much as if he had known it to be false; and this principle applies equally whether the case be tried in a court of law or of equity. Error to Kalamazoo Circuit. Heard July 23. Decided October 8. BEEBE V. KNAPP. Edwards & Sherwood, for plaintiffs in error. Severens, Potter & Boudeman, for defendant in error cited, on the question of the necessity of proving that defendants knew the representations made by them to be false, the following authorities: Converse v. Blumrich, 14 Mich., 123; Marsh v. Falker, 40 N. Y., 562; Bankhead v. Alloway, 6 Coldw. (Tenn.), 56; Cabot v. Christie, 42 Vt., 121; Fisher v. Mellen, 103 Mass., 503; Wheelden v. Lowell, 50 Me., 499; Thomas v. McCann, 4 B. Mon., 601; Lockridge v. Foster, 4 Scam., 569; Dunbar v. Bonested, 3 Scam., 32; Van Arsdale v. Howard, 5 Ala., 596; Munroe v. Pritchett, 16 Ala., 785; Parham v. Randolph, 4 How. (Miss.), 435; Buford v. Caldwell, 3 Mo., 477; and Snyder v. Findley, Coxe, 48. CHRISTIANCY, CH. J. This was an action brought by defendant in error in the Kalamazoo circuit court. The declaration contains two counts. The first sets forth, substantially, that on the 14th day of May, 1869, the plaintiff, at the special instance and request of the defendants, bargained with them to exchange a certain span of horses of the plaintiff's, of the value of three hundred and seventy-five dollars, for a note held by defendants given for three hundred dollars, and seventy-five dollars to be paid by defendants; and that "the said defendants, by then and there warranting, pretending and representing said note to be good, and the maker thereof to be responsible, then and there falsely and fraudulently sold and exchanged the said note, together with the said sum of seventy-five dollars, with the plaintiff for said span of horses; and that plaintiff, confiding in said representations and pretenses of the defendants, on etc., delivered his said horses to defendants for said note and said seventy-five dollars;" that at the time of making said false and fraudulent representations |