the evidence of the others is within the power of the prosecutor, it would, I think, be the duty of the court to require the prosecutor to show the transaction as a whole: See, by analogy, Regina v. Holden, 8 Car. & P. 606; Regina v. Stroner, 1 Car. & K. 650; Regina v. Chapman, 8 Car. & P. 559; Regina v. Orchard, Id., note; Roscoe's Crim. Ev. 164. Until this should be done, it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn; as every reasonable hypothesis of innocence, or a lower degree of guilt, is not, it seems to me, excluded. Criminal prosecutions do not stand on the same ground, in this respect, as civil cases. In the latter no such presumption is to be overcome; nor is it necessary to exclude every other hypothesis than the one sought to be established: 3 Greenl. Ev., sec. 29. But however this may be, it was clearly competent for the defendant to show the rest of the transaction, whether known to the prosecution or not. I think, therefore, for the several reasons stated, the evidence offered was erroneously rejected.

After the evidence was closed, the prisoner was called by his counsel to make a statement under the statute. This statement went strongly to corroborate the facts offered to be shown by the evidence rejected. The prisoner's counsel requested the court to charge that the prisoner's statement was for the consideration of the jury; that they should receive it as evidence in the cause, and give it such credit as, under the circumstances, they believed it entitled to; which the court refused, and the prisoner's counsel excepted. But the court, in this connection, did charge that the statement could not be received in relation to matters of defense excluded by the court, the conduct of Hunt and the prisoner's wife; but that where there were facts and circumstances in relation to the commission of the offense, the jury might consider the prisoner's statement in considering the evidence, and give it such weight as they thought proper.

The only substantial error of the court, in relation to this "statement," is that which grew out of the exclusion of the evidence, and was the natural consequence of that error. he intended to say was that the statement might be considered by the jury so far only as it had any bearing upon the case; but that so far as it related to the conduct of Hunt and the prisoner's wife, it had no such bearing. It was thus far erroneous; but in other respects substantially correct. It is of little consequence whether the statement be called evidence,

or by some other name. It is not evidence within the ordinary acceptation of that term, because not given under the sanction. of an oath, nor is the prisoner liable for perjury or to any other penalty, if it be false; nor can a full cross-examination be enforced. Yet it is clear the jury have a right to give it such credit, in whole or in part, as under all the circumstances they 'nay think it entitled to.

The judgment should be reversed, and a new trial granted. MARTIN, C. J., and CAMPBELL, J., concurred.

MANNING, J., filed a dissenting opinion.

DISTINCTION BETWEEN INTENT TO KILL AND INTENT TO MURDER: Hall v. State, 76 Am. Dec. 617; compare Sarah v. State, 61 Id. 544.

CRIMINAL EVIDENCE-BURDEN OF PROOF: State v. Smith, 54 Am. Dec. 578; Hight v. United States, 43 Id. 111.

MALICE AFORETHOUGHT, DEFINITION, ETC.: Commonwealth v. York, 43 Am. Dec. 373; Commonwealth v. Webster, 52 Id. 711; State v. Hildreth, 51 Id. 364; McDaniels v. State, 47 Id. 93; McCoy v. State, 78 Id. 520, 529, note.

WHAT PROVOCATION MITIGATES INTENTIONAL Killing to ManslaughTER: State v. Johnson, 35 Am. Dec. 742; State v. Hill, 34 Id. 396; McWhirt's Case, Ferguson's Case, 46 Id. 196; State v. John, 49 Id. 396.

MANSLAUGHTER Defined: Sutcliffe v. State, 51 Am. Dec. 459; Anthony v. State, 33 Id. 143; Commonwealth v. Webster, 52 Id. 711.

CITATIONS OF THE PRINCIPAL CASE are as follows, and to the points stated: The burden of proof in a criminal case is upon the prosecution to establish the conditions of guilt: People v. Garbutt, 17 Mich. 22. And it is not only the right but the duty of the prosecution to show, generally, the transaction as a whole, its nature, and its objects, whether its tendency should be to show the guilt or innocence of the defendant: Patten v. People, 18 Id. 327; People v. Marble, 38 Id. 124; Thomas v. People, 39 Id. 312. The particular intent charged must be proved to the satisfaction of the jury, and no intent in law, or mere legal presumption, differing from the intent in fact, can be allowed to supply the place of the latter: Roberts v. People, 19 Id. 415. As to what provocation, and what degree of excitement or confusion of mind, will reduce a homicide to manslaughter, as well as the nature of the circumstances which will render it excusable: People v. Lilley, 43 Id. 527; Hurd v. People, 25 Id. 412. And as to the distinction between civil and criminal cases in regard to legal presumptions: Hamilton v. People, 29 Id. 193.

THE PRINCIPAL CASE IS DISTINGUISHED in Bonker v. People, 37 Mich. 8, and the principle deducible therefrom stated to be that "the prosecutor in a criminal case is not at liberty, like a plaintiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then to put the defendant to the proof of the other part, so long as it appears at all probable from the evidence that there may be any other part of the transaction undisclosed; especially if it appears to the court that the evidence of the other portion is attainable." It was further said that the case is "really aimed at a suppression of evidence, and does not decide that all the witnesses to a transaction must necessarily be called by the prosecution": Id.; and compare Hurd v. People, 25 Id. 405.

COLUMBIA BANK V. JACOBS.

[10 MICHIGAN, 849.]

OBJECT OF REGISTRY LAW IS TO PROTECT PURCHASERS IN GOOD FAITH for a valuable consideration against prior secret conveyances. ATTACHING CREDITOR IS NOT PURCHASER WITHIN MEANING OF REGISTRY

LAW, and cannot claim the benefit of its provisions until the property attached has been sold in pursuance of law, and has been purchased in by him.

IN CASE OF CONVEYANCE BY DEED ABSOLUTE, AND WRITTEN DEFEASANCE BACK BY GRANTEE, and the former is recorded, but the latter is not, such unregistered defeasance is not void under the Michigan statute (Comp. Laws, sec. 2751), except as to purchasers for a valuable consid eration, without actual notice of its existence.

MICHIGAN STATUTE REQUIRING ATTACHMENT LEVY TO BE FILED IN REGIS TRY OF DEEDS, in order to give it any force as a lien (see Comp. Laws, sec. 4751), contained no provision giving such lien priority over pre-existing rights of third persons.

INTEREST OF MORTGAGEE IN LANDS IS NOT SUBJECT TO ATTACHMENT.

THE opinion sufficiently states the case.

G. E. Hand, for the complainant.

C. I. Walker, for the defendant.

By Court, MANNING, J. The bill is to remove a cloud on the title of Cyrus H. Jacobs to lands attached as his by complainant, before proceeding to sell the same on execution in the attachment suit; the alleged cloud consisting in a claim the defendant Rebecca S. Jacobs, wife of the said Cyrus H. Jacobs, has to the land in question, under a conveyance thereof to her by her husband, in nature of a post-nuptial settlement, or separate provision made for her by her husband. To entitle complainant to the relief asked, two things must be established: 1. An attachable interest in the land in question in Cyrus H. Jacobs previous to the conveyance to his wife; and 2. The invalidity of the post-nuptial conveyance, for the purpose stated, in a court of equity.

It appears from the pleadings and proofs that the lands attached were conveyed by George B. Russell and wife to Cyrus H. Jacobs, as security for ten thousand dollars Russell loaned of Jacobs,-Russell at the time giving his bond for the ten thousand dollars, and Jacobs executing and delivering to Russell a writing stating that the conveyance was given as security for the loan, and promising to reconvey the land on the payment of the ten thousand dollars and interest. The conveyance and defeasance taken together, and construed as one

instrument, are a mortgage, and nothing more.

This is con

ceded; and the first of the two questions to be considered involves the effect to be given to an unregistered defeasance, where the property has been attached without actual notice to the attaching creditor of the defeasance.

The conveyance from Russell to Jacobs was recorded, but the defeasance was not; and the bank insists it had no knowledge of the existence of the defeasance when the land was attached, and that it therefore has a lien on the land for the payment of its debt, discharged of the defeasance, and of all rights growing up under it.

"When a deed purports to be an absolute conveyance in terms, but is made, or intended to be made, defeasible by force of a deed of defeasance, or other instrument for that purpose, the original conveyance shall not be thereby defeated or affected, as against any person other than the maker of the defeasance, or his heirs or devisees, or persons having actual notice thereof, unless the instrument of defeasance shall have been recorded in the registry of deeds of the county where the lands lie": Comp. Laws, sec. 2751.

This section must be construed with the other sections in the same chapter, providing for the registry of conveyances of real estate, and must be understood as declaring all such deeds of defeasance or other instruments void when not recorded, against purchasers for a valuable consideration without actual notice of their existence. The registry law is for the protection of purchasers in good faith for a valuable consideration, against prior secret conveyances. It makes no mention of attaching or judgment execution creditors, who must stand on their common-law or statutory rights, independent of the registry statute. They are not purchasers within its meaning, and cannot claim the benefit of its provisions until the property attached or levied on has been sold, in pursuance of law, and has been purchased in by them. Then, and not before, they are purchasers within the statute, and entitled to all its benefits.

The attachment law provides that "real estate shall be bound, and the attachment shall be a lien thereon, from the time when it was attached, if a certified copy of the attachment, with a description of such real estate, shall be deposited in the office of the register of deeds in the county where the same is situated, within three days after such real estate was attached, otherwise such attachment shall be a lien thereon

only from the time when such certified copy shall be so deposited": Comp. Laws, sec. 4751.

This section, when it has been complied with, only gives the attaching creditor a lien on the land attached. Unlike the registry law, it in no circumstances gives such lien a priority over pre-existing rights, as its object is not like the registry law to protect purchasers, but to secure the property attached to satisfy any judgment the party suing out the attachment may afterwards obtain against the defendant in attachment. It is a lien to the same extent as a levy on the land with an execution would be a lien, provided a judgment is obtained in the attachment suit, and a bond has not been given for the release of the property, as provided for in the other sections of the act,-sections 4754, 4755, 4756. A lien to this extent was necessary to give effect to the attachment proceedings, which otherwise might be rendered nugatory by a sale of the property before judgment by the defendant in attachment. While the statute takes from the debtor his right to sell or make other disposition of the property to the prejudice of the attaching creditor, it in no way interferes with the previously acquired rights of third persons.

Jacobs's interest in the land attached, as shown by the defeasance, was that of a mortgagee, which is not attachable; and complainant, not being a purchaser for a valuable consideration without notice of the defeasance, is not in a position to question the validity of the transfer of the mortgage interest by Jacobs to his wife. It is unnecessary, therefore, for us to go into this part of the case, and improper that we should do so, if the rights of Mrs. Jacobs are to be drawn in question without the proper parties before us.

The decree of the court below dismissing the bill is affirmed, with costs.

MARTIN, C. J., and CAMPBELL, J., concurred.

CHRISTIANCY, J., was absent.

LIEN OF ATTACHMENT-PRIORITY: See Roberts v. Bourne, 39 Am. Dec. 614; Hepp v. Glover, 35 Id. 206; Kennon v. Ficklin, 44 Id. 776; Bigelow v. Toplif, 60 Id. 264; Holmes v. Hall, 77 Id. 444.

THE PRINCIPAL CASE IS CITED to the points named in the following cases: A mere attachment levy does not give to the creditor any rights analogous to those of a bona fide purchaser, within the registry laws: Millar v. Babcock, 25 Mich. 138; French v. De Bow, 38 Id. 712. A record is not notice for any purpose when not made so by statute: Id. 711; Burton v. Martz, Id. 764. The registry laws specifically point out the danger to which the party failing