author: Cooley Ci-i. J.

text:
    William H. Tefft et al v. William Windsor.

      Evidence: Qh'ounds on which a verdict was rendered. In an action for malicious prosecution of the plaintiff on a criminal charge, it appearing ihat the plaintiff had been acquitted by jury, the prosecuting attorney ivas called to the stand by defendants, and asked “On ivhat grounds was the plaintiff acquitted?” Held, that the question ivas improper.
    The prosecuting attorney is not to be presumed to know the grounds on which the jury proceeded in rendering their verdict; and if any thing occurred publicly in their presence which should control their verdict, this question was not properly framed to elicit it.

      Malicious prosecution: Damages where plaintiff was disnonest. The fact that a party is dishonest, and purchases goods without intending to pay for them, does not justify his arrest on an unfounded charge of obtaining the goods by false pretences. And in an action for such an arrest he is entitled to recover, not merely nominal damages, but such damages as he has actually suffered from the unwarranted arrest and imprisonment.

      Heard January 7th.

      Decided January 11th.
    Error to Wayne Circuit.
    This was an action of trespass on the case to recover damages for an alleged malicious prosecution.
    Judgment was rendered for plaintiff.
    The facts are stated in the opinion.

      D. O. Holbroolc, and G. V. H. Loihrop, for plaintiff in error.
    A discharge or acquittal of a defendant is sufficient to throw upon'the prosecutor the burden of proof of probable cause; but if it appear that his discharge or acquittal arose from otherwise than on the merits, it is insufficient to shift this burden of proof. The case does not disclose what evidence was introduced showing want of probable cause: it might have been the mere introduction of the record of acquittal. This record was some evidence, therefore the defendants below were entitled to show the facts which Avould get rid of the effect of this, however slight, and to do this the question was askedand had it appeared that it was not on the merits, but by defect in the information, failure to prosecute, the effect of the record as evidence of probable cause is done away with. — 2 Greenl. Ev. 4 Ed. 455.

    2. It matters not that the prosecution was instituted to collect a debt, as the plaintiffs in error claim that this had nothing to do with the question of probable cause, but might be evidence only of malice. There may be malice, but if there rvas probable cause the action cannot be sustained.
    The plaintiffs in error first seek to avoid the effect of this record as evidence of want of probable cause; the court refuses to permit this; it is then useless for the plaintiffs in error to introduce any evidence contradicting other facts tending to show there was not probable cause, because this record, without explanation, is conclusive.
    If the plaintiff below had shown this record of acquittal, that would-be evidence of want of probable cause; but if he had shown that the prosecution failed to introduce any evidence, or consented to an acquittal on the trial, the acquittal would not have that effect. — 1 Am. Lead. Cas 223; 9 East, 361; 4 Barn. & Cress. 21; 10 Cush. 279.

    3. The court erred in charging the jury that if the de-i fendant was insolvent and unable to carry on business, yet that this ruinous traffic might be injured; in other words, that a business fraudulently conducted might be injured; and that a swindling business, if profitable to the defendant in error, might be injured, and the plaintiffs in error liable to damages if they did any act to break it up.

      4. The plaintiffs in error contend that as there was evidence introduced by the plaintiffs in error, from which the jury could and might well have found that the defendant in error obtained the goods fraudulently and could not pay for them, and did not intend to pay for them; then as a matter of law there was probable cause for the prosecution, and the court should have charged that if the defendant in error was insolvent and purchased the goods with the expectation of not paying for them, then no damages should be given.
    The acquittal of the defendant on the criminal prosecution was material only to show that such prosecution was ended, and want of probable cause. Whether there was probable cause was an open question for the jury in this case to consider, and if the goods were obtained by false pretences, or in any way fraudulently, the court should have charged the jury that if the defendant obtained the goods without the intention of paying for them, he was not entitled to damages.
    The obtaining of the goods fraudulently was probable cause of itself, otherwise there could be no answer to any prosecution of this kind.
    Although the prosecution was malicious and unfounded, yet if there was probable cause, the action could not be maintained. — 2 Greenlf. JEv. %fS2; S Dowl, 160; Gow. 20.

      D. B. é II. M. Duffldd, for defendant in error.
    The statement of facts, upon which the advice of Mr. Ilebden was given, was not given or offered to be given in evidence. All that appeared in evidence was that Patchin and Brown, defendants Attorneys’ in the Police Court, had advised with Mr. Ilebden, the Prosecuting Attorney, about the case.
    Unless the defense first show what the statements of facts was, irpon which Ilebden’s advice was given, evidence of wliat advice he gave is clearly inadmissible. — 3 Mason, 102.

    Because in order to be a protection, the advice of counsel must be given upon a full and true representation of all the facts in the case. The defendants must show specifically what facts were stated to counsel, in order that the jury may judge whether such statement was true, and whether all the material facts in the case rvere stated. The omission of any material fact in such statement, will prevent such advice being a delense. — 1 Hill, on Torts, p. 503; 2 Greenl. on Hv. § If 9; 20 O. 119.

    The advice of counsel is hearsay evidence, which as a general rule, is not admissible, and the exception to that rule which allows it to be given in this class of cases, should be strictly confined to a personal conference between client and counsel.
    If the plaintiffs in error had fully and fairly stated the facts of the case to Patchin and Brown, and were by them advised that they had a ground of criminal prosecution against defendant in error, this was a complete defense. With whom Patchin and Brown might have consulted would not be relevant.
    Certainly it would not be relevant in this case, because the defendants below did not prove, or offer to prove, or state to the court that they would prove, either that defendants below had requested Patchin and Brown to advise with Hebden, or even that they reported to the defendants below the advice that Hebden did give. In order to make the advice of counsel a protection, it must be shown that the defendants acted upon such advice. This was not offered to be shown. All that appears in this case is, that Patchin and Brown advised with Hebden. It was not offered to connect that advice with the defendants in any way.
    It was not material to this case on what ground defendant in error was acquitted.

      The acquittal was only given in evidence by plaintiff below to prove rem ipsam, it being an essential part of the plaintiff’s case, to show that the prosecution was ended. This was the only purpose or effect of this proof.
    Whether the verdict of acquittal was rightfully or wrongfully given, was not before the jury in this case. They were not to determine whether the plaintiff below was guilty or not guilty. The only question before them was whether the defendants below had probable cause to believe him guilty, and to commence a criminal prosecution. If they had, no matter how innocent he may have been, plaintiff’s action could not have been sustained.
    Even if there had been evidence in the Recorder’s Court, tending to prove that the plaintiff below was guilty of false pretences, not charged in the indictment,, this fact could not be shown on the trial. — 4 Phill. on Ev. 257; 2 Starkie on Ev. 912; 4 Taunt. 616.

    The record of acquittal is no evidence of any want of ^probable cause. In the case of a criminal prosecution, a discharge by a magistrate or the rejection of a bill by the Grand Jury is prima facie evidence of probable cause, and it is for the defendant to rebut this inference by contrary proof j but a mere acquittal or trial would not be. — 1 Am. Lead. Gas. p. 223, and cases, cited.

    And even if the plaintiff below had been acquitted in the Recorders’s Court on account of a defect in the indictment, it would be no defense to his action for damages.— 1 Hill, on Torts, 488; 4 PMll. on Ev. 254, 258; 2 Starkie on Ev. 907; 5 Barn. and Ald. 634; 4 Term R. 247; 10 Mod. R. 149, 214.

    There Avas no evidence in the case, nor does it appear from the record, that the plaintiff below was carrying on business “Avitliout the expectation of paying his debts,” and the Circuit Judge would not have been justified in submitting to the jury an hypothesis which there Avas no evidence to sustain, and which, as a matter of fact, could not be proven by evidence.
    The mere fact that the plaintiff below was insolvent would not justify a charge to the jury that he could not suffer, and was not entitled to any damages, by reason of a prosecution upon a charge of felony.
    The court instructed the jury “that if plaintiff was insolvent, and unable to carry on his business, and if he had no business to injure, that the jury could not give damages for that he had not suffered; and the jux-y were to give just such damages as he really suffered, and only such.
    There Avas no evidence in the case, or shoxvn by the record, tending to sIioav that the plaintiff had purchased the goods with the expectation of not paying for them, and this request was properly 'refused.
    Even if the goods were bought by the plaintiff when he Avas insolvent, and had not been paid for at the time of his arrest, it Avould not destroy the plaintiff’s right to recover the damages actually suffered.
   Cooley Ci-i. J.

Windsor sued ihe plaintiffs in error in the court below for malicious prosecution, in causing him to be arrested on a criminal charge of obtaining goods vfrom them by purchase through false pretences. On the trial, it was shoAvn that Windsor Avas arrested on the charge, and confined in the county jail for twenty-four houi's; that he Avas afterwards examined before a magistrate, and held for trial; that he Avas put on trial before the Recorder’s Court of Detroit, and acquitted by the jury xvithout leaving their seats. EAddence Avas also given, tending to show that the prosecution Avas malicious, and Avithout probable cause, and Avas commenced for the purpose of collecting a debt which- Windsor oxved the prosecutors.

The defendants then put the prosecuting attorney upon the stand, and asked him this question: “On Avhat ground was the plaintiff acquitted?” The question was objected to, and overruled as incompetent.

This question seeks to obtain from the witness the grounds upon which the jury proceeded in rendering their verdict; which, it is evident, could not be within his knowledge; and we are, therefore, of opinion that the ruling of the court was correct. It is suggested that the acquittal might have been for defect in the information, or might have been submitted to by the prosecution by reason of variance between the proof and the charge; but the answer is, that the question put was not a proper one to call out such evidence, oven if it was material. What it sought was, for the grounds of the action of the jury; and of those no one but one of their own number can be presumed to have had knowledge. If anything took place publicly in the presence of the jury which ivas to control their verdict, it was easy to shape a proper question to elicit information concerning it.

The defendants introduced evidence tending to show that when Windsor purchased the goods of them he was insolvent, and doing business wholly on credit; that he afterwards purchased goods in New York City on credit, and had not paid for them. And they thereupon requested the court to charge the jury, that if they believed Windsor was insolvent, and was carrying on business on credit without the expectation of paying his debts, he was not entitled to damages by reason of said prosecution. The court did charge that, if the plaintiff was insolvent, and unable to carry on his business, and if he had no business to injure, then, of course, the jury could not give damages for that which he had not suffered, and the jury were to give just such damages as he had really suffered, and only such damages as he had really suffered. The court declined to charge that, if the plaintiff was insolvent, and purchased the goods with the expectation of not paying for them, then the jury were not to give any real damages; but did charge that, if the parties were justified in the arrest, the jury would give no damages, and if they were not justified in the arrest, then Windsor was entitled to damages, as already stated.

We perceive nothing In this charge or refusal to charge of which the defendants below could justly complain. Besides any damage to business, Windsor had suffered actual imprisonment, and if his arrest was without legal cause, he was entitled to recover for this, even though he might have been both insolvent and dishonest. The mere fact that a man buys goods without the expectation of paying for them, does not justify his arrest on a criminal charge for false pretences; for thei-e may not have been any false statements at all by the purchaser, but only a want of due caution on the part of the seller. The question in a case like this is whether the prosecutors had probable cause for proceeding against the purchaser for the particular criminal dishonesty they charge against him; and if not, they are liable for such damages as he has suffered. We think the case was left to the jury fairly, and that the judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Graves J.

license: Public Domain

text:
    Joseph Tremble v. Joseph Crowell et. al.

      Particular customs, when void. A local custom which, is opposed to the general policy of the state on the subject to which it refers, is not valid in law.
    A custom that if fish caught within the state and sold in barrels to a dealer without express warranty, prove to be unsound, the seller shall refund the price, tends to defeat the purpose of the inspection laws of the state, and is therefore opposed to the general state policy on that subject, and can not be supported.

      Heard January 7th.

      Decided January 11th.

    Error to Bay Circuit.
    This was an action of trespass on the case to recover damages for the sale of unsound fish. The declaration contained a special count alleging a Avarranty of tbe fish. The common counts Avere also added.
    Judgment was rendered for plaintiff.
    The facts are stated in the opinion.

      A. Maxwell, for plaintiff in error.
    This was merely a sale of goods, in the ordinary course of business, without express warranty: and no Avarranty in such case is implied.
    But the plaintiff below claimed that the contract in this case Avas governed by a settled usage, affecting the sale of fish in this market.
    1. No custom cari exist or prevail against the larv of the land.
    Proof of custom or usage, on the question of liability, cannot be received.— Anthon, N. P. 76; 19 Ohio, 343; 2 Sum. 181; 2 Curtis, C. C. 142, 143 382; 2 Johns. 335; 5 Wallace, S. C. 679; Smith’s Lead. Cases and Am. Notes, 68; 1 Caine’s Reports, 43, 95; 1 Wash. C. C. 145; 2 Id. 7; 6 Porter, [Ala.) 123; 1 Chitty’s Plead. 217; 3 Watts, 179; 10 Mass. 29; 7 Hill, 499; 25 Wend. 674; 16 N. Y. 395; 4 Seld. 194; 13 Pick. 181, 182; 4 Jones, N. C. Law, 332; 28 Ala. 704; 5 R. I. 230; 37 Miss. 202; 32 Vt. 616; 14 Gray, 210; 15 La. An. 436.

    When a contract is express, all usage is excluded. — 20 N. H. 150.

    The proposed usage makes the contract a contract of Avarranty, without any consideration to support it, or any agreement of the parties.
    What difference is there in this case — if this usage prevails — between the effect of usage, and an agreement of Avarranty. — 5 Wallace, 580.

    Such an usage is unreasonable and void.

      Grier é McDonell, for defendant in error.
    1_The usage proved in this case Avas simply that if the fish sold proved to have been bad at the time of sale, the vendor should repay the amount paid for such bad fish. Such a usage is reasonable. It is a mere matter of convenience. Instead of inspecting the fish at the time of sale, and discarding those that were unsound, the buyer takes a delivery of them and makes the inspection afterwards. 6 Hurls. & Norm. 278; Id. 617; 33 Vt. 92; 16 Id. 52; 17 Cal. 594; 9 Iowa, 428; 15 Md. 502; 31 Ala. 501; 32 Id. 617; 4 Hill, 104, 107; 2 Id. 354; 3 Conn. 9; 6 Id. 529; 14 Id. 363.

    A general, or special usage, affecting the peculiar locality, or trade, if proven, will be the law of the contract.— 40 Penn. 241; 25 Ill. 35; 2 Hilton (N. Y. C. P.) 472; 6 Common Bench (N. S.) 691; 8 Clarke (Iowa) 463; 5 Wis. 265; 6 Ohio (N. S.) 90; 25 Barb. 474.

    And a usage adding an implied warranty to a contract, which, by the common law, would not have the effect of a warranty, is reasonable and valid. — 20 N. H. 384; 11 Metc. 186; 4 Taunt. 487; 10 Mass. 203; 19 Mo. 157.

    Evidence of a usage affecting a contract in a matter, where the contract is silent, is admissible. — 19 Wend. 386.

    Evidence may be received that by custom or usage, the seller of chattels is answerable to the buyer, for any latent defects, though there be neither fraud nor warranty. — 8 Rawle, 101.

    2. The plaintiffs were entitled to recover, under the common money counts, any money which was due to them from the plaintiff by virtue of express or implied contract. The promise to make the plaintiff good for the unsound fish was more than a warranty. It amounted to an agreement to repay any money paid for the unsouhd fish. And .the implied contract arising from the usage was, that “the vendor is liable to pay back to the purchaser the -money paid for such unsound fish.”
    The contract was fully executed. The money was due. Under the common counts, upon an executed contract the plaintiff may recover on an express or implied agreement to pay money.- — 1 Chitty’s Pl. 340; 4 Kern. 597.

      A general custom need not be pleaded. — 1 Chitty’s Pl. 216; 1 Harring. 522.

    The parties in making the contract are supposed to refer to the usage, and it is part of the contract. — Duer on Ins. 255, 282; 1 Greenlf. Ev. § 292.

    But oven if it were a local usage, it need not be stated in the declaration. Being entitled to recover on the common money counts by virtue of the usage, we need not state the usage. It is part of the contract.
    And a usage confined to a particular kind of trade, in the City of Boston, is styled a “general usage.”- — 11 Met. 186.

    But the usage involved in this case prevailed on the great lakes. The plaintiffs were residents of Ohio; the defendant a resident of Michigan. What usage could be more general F
    The usage must be general in the whole city or place, , or among all persons in the trade, and not the usage of a particular class only, or the course of practice in a particular office or bank, to whom or which the party is a stranger. And this seems to be the distinction betvyeen a general and particular usage.— 1 Greenlf. Ev. § 292 (n).

    3. But we contend that a usage of trade is not a custom in the sense that the term is used in the authorities when they state that a particular custom must be pleaded. “In its most extensive meaning this term includes custom, and prescription, though it differs from them; in a narrower sense it is applied to the habits, mode, and course of dealing which are observed in trade generally, or to some particular branches of trade. Usage of trade does not require to be immemorial to establish it; if it be known, certain, uniform, reasonable and not contrary to law, it is sufficient.”— 2 Bouv. Dic. 615; 1 Black. Com. 77.

    4. The objection that the plaintiffs “could not recover on account of any express warranty, because no such warranty was set forth in the declaration,” is entirely unfounded, as the special count contained in the declaration does allege an express warranty. — 2 Chit. Pl. 279, 283.

   Graves J.

The defendants in error sued Tremble in the court below in assumpsit and sought to recover from him certain money which they alleged ..they had paid him for a quantity of fish he had sold to them, and which had proved to have been unsound and valueless. The declaration contained the common and money counts, and also a special count in which the defendants in error alleged in the usual manner that the plaintiff in error warranted the fish to be good, sound, and fit for market.

The plaintiffs below, after giving evidence to show that they were wholesale fish dealers at Toledo, in the State of Ohio, and purchased of the defendant, who was a fisherman at Bay City, and paid therefor, about $1.q00 worth of fish, of which on their arrival at Toledo, some sixty - eight half barrels were found to be spoiled and valueless, offered evidence to prove that there was a settled uniform usage, that under a contract for the sale of fish for cash, and where there was no express warranty if the fish or any portion of them proved to be unsound, the vendor should be liable to pay back to the purchaser, the money paid for such unsound fish, and the evidence was admitted under objection.

Subsequently the Circuit Judge in submitting the case to the jury instructed them that if they should find such a settled uniform usage it was valid, and that by virtue thereof, the plaintiffs would be entitled to recover the money paid for the unsound fish, unless the parties' made a contract excluding by.- its very terms the operation of such usage; and to this direction the defendant below excepted.

These objections present the main questions in the case.

It will be observed that the usage relied on, would, if established, place the dealers in fish in Bay City and vicinity, in a position very different from that held by persons in the same business in other parts of the state; and would tacitly annex to all contracts there made for the sale of fish, unless expressly excluded by the contract itself, a stipulation, which would tend, inevitably, to supersede all official as well as private inspection; and would prescribe a specific redress in case of the sale of-“tainted” or “damaged” fish, entirely different from that marked out by the statute.

Would such a usage be a reasonable one if conclusively proved ?

It' appears to me that it would not.

The legislature have thought proper to provide for a system of public inspection of various - articles, and among them the article of fish; and have made numerous and precise regulations on the subject. — 1 Comp. L. p. 386 also, 392 to 394.

They have provided for the election of inspectors; have required them to make inspection when desired so to do; have specified the manner in which it should be done; have provided that the fish inspected should be designated by the inspector as number “one,” or “two,” according to quality, and have required the inspectors to report annually to the Secretary of State the quantity, quality, and kinds inspected during the year.

They have also provided that, if any person shall sell, within the state, or export, or cause to be exported' therefrom, any tainted or otherwise damaged fish, unless with the intent that the same shall be used for some other purpose than as food, he shall forfeit $10 for every one hundred pounds of such fish; and that upon the trial the burden of proof shall be upon the vendor to show for what purpose such fish were sold or exported.

By another section they have declared that it shall not be obligatory upon any one to have fish inspected; but that all contracts for the sale of fish shall be deemed made with reference to those provisions of the statute regulating the quality, quantity and other descriptions, unless the parties otherwise expressly agree.— Comp. L. §1286.

Although the statute is not imperative on the subject of inspection, the penal provision against the sale of “tainted” or damaged fish is so; and the whole act is plainly expressive of a legislative purpose to provide the system of regulations for the trade, which the legislature deemed the best. Whether the usage in question would directly and necessarily conflict with any of these statutory regulations need not be determined, since in my opinion the usage can not be sustained if found to be inconsistent with the policy or spirit of the statute.

It appeal’s to me to be a part of the policy of the law in question to encourage the practice of official inspection and discourage a contrary course; to regulate the traffic in fish in the manner most likely to insure fairness between dealers, and maintain everywhere the reputation of a most important branch of the commerce of the state.

As the supposed usage assumes that the article is purchased without the safeguard of inspection, and that the buyer will be saved from loss on a purchase of uninspected fish by the right given him by the usage to recover of the vendor the price actually paid; the effect of the usage must be to cause dealers to dispense with inspection, and pave the way for those consequences which the law was desigued to avert; and, at the same time, to defeat the desirable objects which the legislature intended to promote.

Without attempting to contrast the usage with specific provisions, I think there can be no doubt but that it would introduce a practice altogether at variance with the spirit and plain policy of the inspection laws; and that if it were accepted as binding, it would go far to render those laws nugatory, and to supercede inspection altogether by responsible public officers.

Entertaining this opinion, I think that the usage in question was and is invalid, and that it could furnish no basis for a recovery in this case.

This conclusion, if correct, makes it unnecessary to consider the other questions in the case.

I think the judgment of the court below, should be reversed, with costs.

The other Justices concurred.


author: Ohristianoy J.

text:
    Hiram Granger et. al. v. James H. Hathaway et. al.

      Agent: Liability for money paid him for the principal by mistake. An agent to whom an over-payment has been made through mistake, by the debtor of his principal, and who has paid over the money before notice of the mistake, is not liable to an action by the debtor for such money.
    If such over-payment is made upon one of several negotiable notes given by the debtor, and falling due at different times, and the agent has become purchaser in good faith of one of the notes afterwards to come due, the debtor, when such last mentioned note falls due, is not entitled to set off against it the over - payment made upon the previous note.

      Heard January 5th.

      Decided January 11th.

    Error to Clinton Circuit.
    This was an action of assumpsit brought.to recover the amount due upon a promissory note.
    The plea was the general issue with notice of set off and tender.
    Upon the trial, plaintiffs gave in evidence a promissory note dated December 3, 1866, made by defendant for the sum of $400, payable six months after date at the First National Bank of St. Johns, to the order of J. W. Hooker, and indorsed by him; and thereupon rested.
    Defendants then called Samuel S. Walker, who testified tlTat he was cashier of the First National Bank of St. Johns, at St. Johns, Michigan; that the plaintiffs, who were bankers doing business in Detroit, Mich., sent to said bank in tbe first part of 1867, each before it was due, for collection, five notes; one being the note in suit which was last sent to the bank. The said four notes all bore date December 3, I860, signed by defendants, and drawn to .the order of J. IV. Hooker, payable at the First National' Bank of St. Johns, and drawing seven per cent, interest, and ten per cent, after due; each for the sum of $300, and payable in two, three, four and five months from their date respectively: the two first falling due being unindórsed, and the two last falling due being indorsed “J. IV. Hooker.”
    Said witness further testified that on March 23, 1867, defendants paid $200 on the note falling due February 4, 1867, which was indorsed on said note and sent to plaintiffs; that on April 24, 1867, defendants paid the note falling due in April, 1867, which was sent to plaintiffs; that on May 11, 1867, defendants paid $932.25, which was sent to plaintiffs, and on July 12, 1867, defendants offered to pay balance of note in suit if witness would apply $200 which was twice paid by mistake on the note falling duo in February, 1867; that witness declined to receive such balance and deliver up the note in suit, and defendants then tendered said balance and deposited it in said bank.
    On cross-examination he testified that the money was paid on May 11th, 1867, by defendant Hale; that said Hale came into the bank and said, “ I guess I will take up those notes;” that witness then reckoned up the notes then in bank, making the amount due on the note falling due in February, 1867, $311.67; on note falling due in March, 1867, $311.08; on note falling due in May, 1867, $309.50. Hale paid the amount ($932.25 ) to witness, and witness delivered the notes to Hale and sent money to plaintiffs; and neither noticed the $200 indorsed on February note; that witness did not know of the mistake till Hale came into the bank and informed him on July 12, 1867, when Hale offered to pay the balance of the note in suit, less the $200, as stated in the direct examination: that the note in suit had not been received by the bank on May 11, 1867, but that it was in the possession of the bank on July 13, 1867.
    The plaintiffs then offered to prove by said witness, who was the owner of the notes falling due in February and March, 1867, at the time when they were paid; but the defendants objected on the ground that it was irrelevant, immaterial and incompetent.
    The court sustained the objection.
    The plaintiffs then offered in evidence two letters, written to him by the witness; the first of which he sent to plaintiffs with the money sent on March 23, 1867, and the second of which he sent to plaintiffs with money sent on May 11, 1867, the first of which stated that it inclosed for credit account of J. TV. Hooker, amount paid and indorsed this day on Hathaway & Hale’s note, $200.
    The second letter stated that it inclosed $932.25, and added: “You will please credit from it J. TV. Hooker, $622.25, in payment of Hale, H. & E. note of February 4 and March 6, and the balance, $309.50, will pay Halo, Hathaway & Eumsey’s note sent in yours of May 2, protested 6th.”
    Defendants objected to the introduction of said letters as evidence, on the ground that they were irrelevant, immaterial and incompetent to the issue, and said Circuit Judge sustained the objection.
    The defendants here rested, and the plaintiffs called Oren T. Sabin, who testified that he was one of the plaintiffs; that plaintiffs sent the note in suit to the First National Bank of St. Johns, on the 1st day of June, 1867, and not before.
    The plaintiffs then offered to prove by said witness, that the plaintiffs purchased the note in issue of J. TV. Hooker, on March 15, 1867, for a valuable consideration; to which the defendants objected .on the ground that it was irrelevant, immaterial and incompetent, and which objection was sustained.

      The plaintiffs then further offered to prove by said Avitness, Oren T. Sabin:

      First: That said notes falling due in the months of February and March, 1867, belonged to and were the property of J. W. Hooker Avhen they were paid and money sent to plaintiffs.

      Second: That in sending said notes falling due in the months of February and March, 1867, to the First National Bank of St. Johns, and in receiving the money paid thereon from said bank, plaintiffs were acting as agents of said J. W. Hooker.

      Third: That said plaintiffs paid all the money received on said tAVo notes falling due in February and March, 1867, from said bank to said J. W. Hooker, including the $200 sent on March 23, 1867, and $622.25 of the money sent on May 11, 1867.

      Fourth: That the said notes falling due in. April and May, 1867, belonged to plaintiffs when they were paid.
    Defendants objected to said evidence on the ground that they were irrelevant, immaterial and incompetent, and which Avas sustained by the court.
    Said Avitness, Oren T. Sabin, further testified that plaintiffs applied money received on said notes from said bank as advised by said bank; that the $200 sent plaintiffs on March 23, 1867, and $622.25 of the money sent plaintiffs on May 11, 1867, by said bank, Avas placed to the credit of J. W. Hooker, and balance of money sent by said bank Avas taken by plaintiffs; and that plaintiffs did not lcnoAV of the over payment on said February note until July 12, 1867, Avhen their attention Avas called to it by said bank.'
    The Circuit Judge found that, as all the notes were, by their terms, made payable at the First National Bank of St. Johns, and all the money Avas paid at said bank on said notes that Avas paid, that the $200 overpaid on the note falling due in February, 1867, must be applied as payment, in so far, on the note in suit, Avithout regard to Avho Avere the owners of the notes, or to whom the money was finally paid, particularly as the money all went into the hands of the plaintiffs; and further, that as the balance of the note in suit, after deducting said $200, was offered to said bank, which bank, by- the terms of the note, was the agent of plaintiffs, it must be treated as a payment of said balance.
    Judgment was thereupon rendered for defendants.
    To which ruling, finding and decision, plaintiffs excepted.

      Baldwin and Perrin, for plaintiff in error.
    1. Money paid by mistake can generally be recovered back in an action for money had and recived, or be set off to an action on contract; but money paid by mistake to an agent, and by the agent paid over to the principal, before notice of the mistake, can not be recovered back from said agent in an action for money had and received, or in any other action, and therefore can not be a subject of set off in an action by said agent, against the person paying the money by mistake. — 4 Cow. 454; 7 Id. 456; 1 Wend. 173; 8 Kelly, 90; 5 Barr. 516; 2 Swan, Tenn. 295; Comp. L. § 4180.

    Therefore the plaintiffs should have been permitted to show that the testimony offered Avas not irrelevant, immaterial and incompetent.

      a. That the notes falling due in February and! March, 1867, belonged to J. W. Hooker, and the April and May notes to plaintiffs, when they Airere sent to the bank for collection, and the money received on them by plaintiffs.

      b. That plaintiffs acted as agents of J. W. Hooker in sending said February and March notes to the bank, and in receiving the money on them from the bank, including the said $200 overpaid by mistake.

      c. That plaintiffs as such agents paid 0Arer all the money received on said February and March notes, including said $200, overpaid to said J. W. Hooker, before notice of mistake.

      d. And should have been permitted to introduce the letter received from the bank, advising them on what notes the money was paid, and directing them how to apply the money.— 10 Mich. 461.

    2. The plaintiffs should have been permitted to prove that they bought the note in issue on March 15, 1867, for a valuable consideration.— Comp. L. § 4-180, Sub. 9. ■

    The February and March notes being unindorsed, were the property of J. W. Hooker, and all money paid on them was paid for him, and it can not be said that’ defendants, by making an over payment, by mistake, on said notes, thereby made a payment of the amount overpaid on another note not yet due, held by a third person. — Edw. on Bills and Notes, 537, 538.

    It makes no difference that the notes, were all payable at the bank where the over payment was made. Notes payable at a bank, are not thereby payable. to a bank, and payment need not even be demanded at the,bank. — 6 Mich. HO; 18 Pet. 136.

    Offer of payment of balance of note in suit, less the $200 overpaid on February note to the cashier of the bank and depositing such balance in the bank, is not a payment of such balance to the holder of the note, but judgment should have been rendered for such balance in favor of plaintiffs.

      Strickland S Stout, for defendant in error.
    1. It is wholly immaterial when the plaintiffs bought said note, and whether for a valuable consideration or otherwise, so far as the proof on the pg,rt, of said plaintiffs is concerned. . '
    For the reason that the law presumes the holder of negotiable paper, purchased the saiho, before due and for value. — Pars. on Con. 254, 255. See note.

    The defendants did not attack- that presumption by proof while the case was in their hands. Therefore the plaintiff cqiiM not offer said evidence of purchase for value, by way of rebutting the defense, or otherwise.
    2. The ownership of the notes falling due in February and March, 1867, could not affect the rights of defendants. They arc bound by the terms of the agreement to pay the money at First National Bank in St. Johns, a\id when this had been done, they were discharged. And i-t can not be of any sort of importance to defendants who, or what parties were to receive said money from said bank.
    3. The letters of said bank to the said plaintiffs, advising them how to dispose of said money, are in the nature of hearsay, and ought not to be received for the purpose of affecting the rights of defendants. The defendants are not privy to or responsible for any disposition of said money, by said bank or by the said plaintiffs.
    A It is entirely immaterial whether plaintiffs were acting as agents or as principals in sending to the bank at St. Johns the notes falling due in February and March, 1867. Because, whether agents or principals, the duties or obligations of defendants remain the same. The relations existing between the plaintiffs and J. W. Hooker, and between the plaintiffs and said bank, are not matters that in any way can operate to change the duties or liabilities of defendants.
    5. If plaintiffs paid over to J. W. Hooker §200 more money than belonged to him, the defendants are not in fault for that action, and proof establishing that fact would not tend to charge these defendants.
    The finding by the court is warranted by the proofs in the case, and the law applied to said proofs.
    The notes were all sent to the First National Bank, St. Johns, by the plaintiffs, and all the money sent by said bank to said plaintiffs, except the balance due on the note in suit (after applying said §200 on said note,) and that balance was tendered to said bank to pay said note while it was in the hands of said bank, and left there for said plaintiffs as, and for, a payment of the said balance due on on said note.
    The First National Bank at St. Johns was made, by the parties, the agent to receive the money; and defendants were not bound to look after the money after it was paid to the bank.
   Ohristianoy J.

If the plaintiffs were merely the agents of Hooker in the collection of the note falling due in February, upon which the overpayment of $200 was made in May following, and this surplus payment was received by them without being aware of the mistake made by the defendant and the Bank of St. Johns, and they, in good faith, and in ignorance of the mistake, paid the amount over to Hooker, their principal, we think it entirely clear the defendants would have no right of action against these agents for the amount thus overpaid, but must seek their remedy against Hooker, the principal, who received the money. And, for the same reason, they would be precluded from setting up, in payment or off-set, this amount against these plaintiffs if the latter were the owners of the note upon which the present action was brought; and especially if they obtained the note in good faith before due, and before the overpayment in question passed through their hands to Hooker.

Now, all the evidence offered by the plaintiffs and rejected by the court, tended to show just the state of facts here supposed, which, if satisfactorily established, would have constituted a full answer to the claim of defendants against the plaintiffs for this amount. All the evidence offered was, therefore, erroneously rejected.

The finding of the court was also erroneous, on the same ground, in holding that these facts would not constitute a sufficient answer to the claim of the defendants.

The judgment must, therefore, be reversed, with costs, and a new trial awarded.

The other Justices concurred.


author: OampbhlIj J.

text:
    George S. Bell v. Andrew J. Utley and Thomas D. Hance.

      Contract: New Consideration: Evidence. Defendants sold plaintiff all their logs in the custody of a boom company. “ supposed to bo one million feet,” for $5,00U, payable partly on time and partly in specified lands, and the consideration was received as agreed. Several days thereafter i>laiutift' obtained of them without any new understanding or consideration, a paper in the form of a re" ceipted bill of parcels for one million feet at $5 per thousand for logs in possession of the boom company, having thereunder a receipt, for $5,000 in full payment of the logs, guaranteeing title, and directing the boom company to deliver them up, and sued on this paper for an alleged deficiency in the quantity of logs: Held,
    1. That evidence was properly received to show that the last paper was given without any new consideration or agreement, and merely intended to aid plaintiff in obtaining the logs.

      % That the title to the logs having become vested by the first sale, the second paper could have no force as an agreement, without some new consideration; but in the absence of that must, be regarded as nothing further than a means of carrying the real contract into effect, and must, therefore, be construed with it, and could create nb cause of action.

      Heard January 6th.

      Decided January 11th.

    Eitot to Gratiot Circuit.
    This was an action of assumpsit, to recover damages for tlie broach of an alleged contract for tlie purchase of certain logs.
    Judgment was rendered for defendants..

      Foote <& Grant, for plaintiff in error.

      Strickland & Stout, for defendants in error.
   OampbhlIj J.

Suit was brought by Bell against tire defendants for the breach of an alleged agreement of the following tenor:

“Alma, Gratiot Co. Mich. May 12, 1865.
George S. Bell, to Utley & Hance, Dr.
To one million feet of pine saw logs, marked diamond sliape, said logs now being in tlie possession of tbe Tittabawassee Boom Company, of Saginaw City, at $5 per M, $5,000.
Received of George S. Bell, §5,000, in full payment, of tlin above logs, and we hereby guarantee our title to said logs, to be perfect, and hereby agree to warrant and defend the title of said George S. Bell to said logs, against all persons whatsoever claiming or to claim the same. We also hereby order and direct the said Tittabawassee Boom Company to deliver said logs into the possession of said George S. Bell, on presentation of this order.
U. S. Revenue Stamp, Five Cents,
Attest: D. W. C. Chapin.
TTLEY & HAHCE.*’

Upon the trial, he gave evidence of the execution of the paper, and that the lumber in possession of the Boom Company amounted only to 739,575 feet, and rested.

The defendants then gave in evidence a prior agreement, dated May 5th, 1865, whereby they bargained and sold o Bell, their pine logs in the hands of said Boom Company, “ supposed to be one million feel,” for the sum of $5,000, payable partly in land and partly in money on time', the bargain to be void if the land was not satisfactory as represented.

One of the defendants was then asked as a witness, what was intended by the order óf May 18th, in respect to ■the lands sold, and answered under objection, that it was intended to aid plaintiff in getting the logs out of the boom, in case there should be any difficulty. That he paid nothing more than was stipulated by the preceding agreement; that the logs were not sold at $5 a thousand, and that he told plaintiff how many logs he supposed 'they had, and showed him the scale on their book, and that the scale was correct, and he told Judge Chapin to write an order, and supposed he wrote the paper of May 18th. Utley also testified that no new agreement was made or talked ofi and that he considered the bargain finished when the lands were found satisfactory, and the deed was made on May 9th. Bell inreply, testified that the talk was about $5 per thousand, and that defendants said they thought their scale was correct, and would hold out.

The court being requested to charge that the papers of May 5th and May 12th must be construed together, and in case of conflict the last must govern, and that the words “supposed to be one million feet,” must be construed as equivalent to a statement that there was such an amount, declined so to charge; but did charge the jury that if both papers related to the same transaction, and the first was in force, not abandoned or rescinded, the property intended to be sold by defendants, and purchased by plaintiff, was fixed thereby, and the subsequent paper must be construed as referring to the same logs, and could not have the effect to enlarge the subject of sale and purchase.

The court being further asked to charge that, if the jury believed the paper of May 12th, expresses the intent of the parties at that date, it should govern, declined so to charge, but did charge that it was the duty of the court to construe that paper, and to determine the intent of the parties from all the instruments in writing made by them, and that there was no evidence of any new terms negotiated between the parties.

We think the action of the court below was correct throughout. The first agreement transferred title to all the logs, subject only to the contingency of dissatisfaction with the lands given in exchange, which were accepted prior to May 12th.

To rescind this bargain, and to substitute new terms, would require proof of some positive agreement upon a valid legal consideration. No new consideration passed, and it was certainly competent to show this, and that the new paper was not the result of any new agreement. Had it appeared to be an agreement upon consideration, then it might be claimed, with some force, to be beyond contradiction as to its meaning by parol proof; but, until it is established as a valid agreement, it can have no such ioree. The papers, as conceded on both sides, are to stand together, and if this be so, the later document can in no sense be considered an agreement, but must be regarded as something given to aid in carrying the real agreement into effect. It could, therefore, be no cause of action in itself, and plaintiff, having made out no case under anything else, could not recover, under any circumstances, in this action. If he had any cause of action whatever, it could only have been in connection with the first contract, which is not asserted or relied upon here.

Judgment was properly given against him, and it should he affirmed, with costs.

The other Justices concurred.


author: Ohristiancy J.

text:
    Samuel Cross et al. v. E. V. McMaken.

      Affidavit for attachment, requisites of. An affidavit for an attachment -which avers that defendants u are indebted” to the plaintiff in a certain sum, upon express contract, but which fails to allege that such indebtedness is “ due,” does not comply with the statute, and is void.
    The statute requires the affidavit to show the existence of a present cause of action against the defendant; and to aver that a party is indebted, is not equivalent to an allegation that the demand is due.

      Heard January 6th.

      Decided January 11th.

    Error to St. Joseph Circuit.
    McMaken, plaintiff below, sued out a writ of attachment against Cross and McDowell.
    The affidavit upon which the writ was issued, is in the words following:
    “STATE OF MICHIGAN ss St. Joseph County.
    R. W. Melendy being duly sworn, says that lie makes this affidavit for and in behalf of E. Y. McMaken, of the city of Toledo, State of Ohio, and that Samuel Cross and William McDowell, co-partners, doing business under the firm name and style of Cross and McDowell at Leonidas, in said County of St. Joseph, who are the defendants named in the annexed writ of attachment, are justly indebted to the said E. Y. McMaken, plaintiff in said writ, upon express contract, in the sum of $619.48, as near as may be, over and above all legal set-offs. And this deponent further says, that he has good reason to believe that the said defendants, Samuel Cross and William McDowell, are about to assign and dispose of their property, with intent to defraud their creditors, and further says not.
    Subscribed and sworn to before rue, this 14th day of January, A. D. 186S.” '
    Defendants’. property was duly levied upon, and judgment finally rendered against them in favor of plaintiff.
    The only question raised by the record is as to the sufficiency of the foregoing affidavit.

      Wm. L. Stoughton, and H. F. Severens, for plaintiffs in error.
    The principal question in this case depends upon the construction of our statute authorizing creditors to proceed by attachment against their debtors. Should the affidavit which is made a prerequisite to the" writ, show that the debt sued for is due?
    We insist that it must, and that the court below erred in holding the contrary.
    The statute requiring the statement that the “debt is due,” without reference to other sections, would seem in plain terms to require such averment in the affidavit. — 2 Gom¡). L. §471/8.

    The section is somewhat tersely drawn. A slight change in punctuation (putting the comma after the word due instead of the word contract) would make the interpretation plain, and conformable to what must have been the intention of the legislature. We claim that the fact that the punctuation -is otherwise does not make the construction different. For the general rule is that punctuation is no "part of a statute, and is not to be regarded in construction. — -Dwarris on Stat. 2d Ed. 601; 9 Gray, 382.

    3. By comparing the different sections with each other and construing them. together —Buckley v. Lowrey, 2 Mich.

      418 — our position is fortified and the moaning of the legislature clear. Section 1 authorizes the proceeding only “in the cases, upon the conditions, and in the manner provided in this chapter.” Section 4 provides that the writ shall not issue “unless the amount stated in such affidavit as due to the plaintiff” should equal $100.
    And the other provisions are framed upon the hypothesis that a case is made showing the debt to be dire.
    3. But if these considerations do not settle the question upon the letter of the statute, then we say that by implication the necessity of such statement is involved.
    And what is implied is .as much a part of the statute as if expressly written.— 1 Black, 55, 61.

    To hold that a creditor may proceed in this way without showing a cause of action, would lead to intolerable abuse of the statute and harrassing' of individuals.
    4. But supposing the construction doubtful if the question were res integra, it is settled in this state by uniform practice and judicial decisions. — Green’s Prac. § 219; 2 Mich. 218; 3 Id. 531; 10 Id. 508; 1 Doug. 330; 2 Id. 93.

      Johnson & Higiy, for defendant in error.
    The - main question in this case is, whether the affidavit upon which the writ of attachment issued is sufficient to give the court below jurisdiction.
    The word “due,” in the phrase “and that the same is due upon contract express or implied,” is omitted.
    In Wilson v. Arnold, 5 Mich. 98, this same question was raised, and though the case was disposed of upon another point, yet the court, in noticing this point, undertook to give the requisites of a sufficient affidavit under our statute. Justice Manning, who gave the oprinion, says:
    “It must be positively stated (in the affidavit), and not on information and belief only, that the defendant is indebted to the plaintiff, and the amount of such indebted^ ness, as nearly as may be, over all legal set-offs. It must also appear that the debt is on contract, express or implied, or on judgment; all these facts must be sworn to positively;" not necessarily in the words of the statute, but in language equivalent to that of the statute.”
    In this statement the word “due” is not noticed, because, in the statute, it is not used in the sense contended for. It is not used in the sense that’the time for the payment of the debt sworn to had elapsed, but used only in the sense of indebtedness generally. The object of this clause of the statute is to show the character of the indebtedness, and not that by the terms of the contract it had become payable: that is, expressed in the term “is indebted.”
    That the word “due” is used in both senses, see 6 Peters, 29.

    As to the cases where courts have held that affidavits using language equivalent to that required by the statute are good, see Drake on Attachment, %106; 15 La. h%9.

    In this case, where the statute required the affidavit to state “the amount of the sum due,” and the plaintiff swore that the defendant was “really indebted” to him in a certain sum, it was held that the expression conveyed the idea of a debt actually due and payable, and was sufficient.
   Ohristiancy J.

The. only question in this case is that of the sufficiency of the affidavit upon which the writ of attachment issued.

The statute — Comp. A. Oh. Ufi, § P — requires the affidavit to state, among other things, “that the defendant is indebted to the plaintiff, and specifying the amount of such indebtedness, as near as may be, over and above all legal offsets, and that the same is dtoe upon contract, express or implied, or upon judgment.”

The affidavit in this case, is that the defendants “are justly indebted to the said E. Y. McMaken, plaintiff in this writ, upon express contract, in the sum of. $619.48, as near as may be, over and above all legal set-offs;” thus omitting any allegation that the indebtedness is due, except as this might be inferable from the term “indebted” in the context in which it is used.

There can be no doubt of the intention of this statute, to require of the plaintiff, as a condition precedent to this extraordinary statute proceeding which seizes the defendant’s property before trial, that he shall first show by his own oath, or that of some other person knowing the facts, that he has an existing cause of action against the defendant, arising upon contract; in other words, that there is an indebtedness of the defendant which is due or payable at the time. — See Buckley v. Lowry, 2 Mich. 418; Hale v. Chandler, 3 Id. 531; Galloway v. Holmes, 1 Doug. Mich. 330; Green’s Pr. § 219.

It is urged by the counsel for defendant in error that this is sufficiently shown by the allegation in the affidavit that the “defendant is indebted.” But this phrase, in itself, is somewhat equivocal. In the popular, as well' as the strict legal sense, a man is said to be indebted to another without reference to the question whether the debt is due or yet to become due. The law recognizes a debt not yet due as a present debt, though payable in future— debitum in prcesenti, solvendum in futuro.

And though the language of the affidavit, that “defendant is indebted,” when considered in reference to the purpose of the affidavit, might furnish an inference that an indebtedness already due was intended; yet, without an express declaration to this effect, in the affidavit, there might be room for some doubt, or equivocation at least, as to the real meaning of the affiant. The legislature have seen fit to require that this shall not be left to inference, but shall be placed beyond all question or doubt, by requiring proof of both the facts, the indebtedness, and that it is due; and have required the affidavit positively to state both. The language is, “clue upon contract.” If they meant no more than is claimed by defendant in error, they would much more, naturally and appropriately have said, “ arising upon contract,” or “that the same is founded upon contract.”

This is put boyoncl all reasonable doubt by the language of the fourth section, “ no writ of attachment shall be issued under the provisions of this chapter, unless the amount slated in such affidavit as dim to the plaintiff over and above all legal set-offs, shall exceed the sum of $100.— See Buckley v. Lowry, 2 Mich. 418.

And in view of the abuses to which this extraordinary remedy is liable, we deem it a wise policy to require a somewhat strict compliance with all the essential conditions prescribed by the legislature as safeguards against such abuses. Even with this provision as it is, the records of our own .courts show that, in several cases, the writs have been issued when the debt, or a great part of it, was not yet due.— Buckley v. Lowry, 2 Mich. 418; Hale v. Chandler, 3 Id. 531; and see Galloway v. Holmes, 1 Doug. Mich. 330.

In Wilson v. Arnold, 5 Mich. 98, this point, though raised, was not passed upon by the court, the affidavit being held bad upon other grounds. And what is there said of the requisites of the affidavit must be construed with reference to the ground upon which the opinion in that case was based.

The Circuit Court erred in holding the affidavit sufficient; and as the whole proceeding depended upon this, the judgment must be reversed with costs.

The other Justices concurred.


author: Cooley Oh. J.

text:
    The Singer Manufacturing Company v. Underwood Armstrong.

      Evidence: Value of services. In an action for the value of services for labor performed upon a certain article, after the plaintiff had proved the services and their value, the defendant proposed to show what the article was worth when new: and also what plaintiff had charged to furnish an article very similar to the one so repaired.

      held. That the questions were irrelevant and incompetent.

      Heard January 8th.

      Decided January 11th.

    Error to Wayne Circuit.
    This was ail action of assumpsit, brought to recover the value of services, and materials furnished, in repairing a counter in defendant’s Store.
    On the trial, the plaintiff was sworn, and testified that he was a carpenter, and repaired a counter for Ii. R. Joslin, agent of defendant below; that he sent two men at said Joslin’s request, to do the repairs; that they worked twenty-two and one - half days upon the job; that he charged $3 per day for the same, and that the materials furnished by plaintiff amounted to $7.95.
    On cross - examination said plaintiff testified that he built the cashier’s desk for defendant below about the same time the repairs were done on the counter, but could not say how many days it took to do it; that the desk was modeled after the counter, and was made like it; that it had glass on the top; that he told Joslin he would charge $125 for the desk if he would give him the front work; that the cashier’s desk was fifteen or sixteen feet long. That he •charged $10 per foot, and furnished everything. The counter repaired was .from eighteen to twenty feet long on top.
    The counsel for said plaintiff, further to maintain the issue on his part, called Alfred Reeves and George Creasy, who gave evidence, tending to prove the time spent by them in and about said repairs to said counter, amounting in all to twenty - tAvo and a half days, as testified to by said Armstrong. After the introduction of further testimony, said plaintiff rested his case.
    And thereupon the counsel for said defendants called H. B. Joslin as a Avitness, who, after testifying that he was agent of defendants, that the counter, on Avhich repairs were done, came from Chicago, and was from tAventy to tAventysix feet long, Avas asked by defendants’ counsel,
    “What was this counter worth when new? What did plaintiff charge to build the cashier’s desk new, and furnish everything ?
    To each of which questions the said plaintiff objected. The court sustained the objections and excluded the evidence. To which ruling of the court the defendants, by their counsel, did then and there except.
    Judgment was rendered for plaintiff below.
    A writ of error Avas sued out, and the above rulings of the court assigned as errors-

      H. M. & W. E. Oheever, for plaintiff in error.

      Robinson & Broolcs, for defendant in error.
   Cooley Oh. J.

The questions put to the Avitness Joslin in this ease, and Avhich were overruled, Avere clearly irrelevant and incompetent, and the Circuit Judge Avas right in overruling them.

The other Justices concurred.


author: Cooley Oil J.

text:
    Isaac Wixom et al. v. John Stephens et al.

      Judgment: Merger of demand,. A judgment wliieli is ineffectual, by reason of a-mistake in the name of one of the plaintiffs, will not preclude them from bring ing a new suit to recover upon the original demand. A debt is not merged in a judgment until a valid judgment has been obtained upon it.

      Adjournment of examination to another town: Depositions: Practice. The practice of adjourning tho examination of witnesses, hy the commissioner, to another town- from that designated for the purpose, without the consent of parties, is of questionable propriety, and not to be encouraged.
    Where, however, a party did not attend at tho time and place designated by his adversary for the talcing of testimony, and the commissioner, owing to the absence of one of the witnesses, adjourned, the examination to another day and another place, within the county, and, on such adjourned day, proceeded to talce the testimony, it was held that, if the party had in any -way been injured by tho adjournment, his remedy was to apply to the court, on proper showing, to suppress the depositions; and an objection made at the trial to their being read, was properly overruled.

      Heard January 6th.

      Decided January 11th.

    Error to Genessee Circuit.
    This was an action of assumpsit upon a promissory note.
    The pleadings and the facts of the case are stated in the opinion.
    Judgment was rendered for plaintiff below.

      J. L. Topping, for plaintiffs in error.
    1. The Justice, E. LaKue, before whom the suit was originally commenced, had jurisdiction of the case, and the plaintiffs appeared by their attorneys. The note haying-been given in the firm name of Stephens & Beatty, there was nothing in the process or pleadings in the case to notify the defendant, Isaac Wixom, Jr. or his attorney, that the suit was not commenced in the true name of the plaintiffs. The plaintiffs are estopped from setting up or proving the mistake.
    The note was merged in the judgment as to Isaac Wixom, Jr.— 2 C. L. § 3782; 4 Mich. 316; 4 Comst. 62.

    The note being merged as to Isaac Wixom, Jr., no action could be maintained against him severally, except on the judgment, and no action can be maintained against him and Isaac Wixom, on the note, except by the same parties who recoveredt the first judgment. If the note is not merged as to all the parties by the judgment in Justice Court the negotiability of the note is destroyed thereby.

      The judgment became a judgment of the Circuit Court of Ingham County, after filing transcript and docketing of the same. — 2 G. L. §3788.

    When a court has jurisdiction its proceedings can not be impeached collaterally; nor when of record can there be any proof in opposition to the record. — 1 Doug. Mich. 390; 1 Greenlf. Dv. § 19.

    A can not maintain a suit in his own name on a judgment in favor of B, even though it be averred and proved that the judgment was rendered in A’s favor by the name of B by mistake. —13 Mich. 40.

    2. The taking of evidence by deposition is in contravention of the common law, and the statute must be strictly complied with.
    If an adjournment of the time of taking a deposition is made by the person authorized to take the same, reasonable notice thereof'must be given to the parties by him in case the parties do not appear. — 31 Vt. 529.

    It is irregular in taking depositions to adjourn from the place where the adverse party has been served with notice to attend, to another place in the absence of such party. 20 N. H. 379.

    Objections may be made at the trial to depositions when notice of filing of the same with the clerk has not been given by the party taking the same. — 4 Mich. 554.

    The depositions being irregular there is no evidence to support the judgment.

      T. G. Smith, for defendants in error.
    1. The judgment recovered before F. LaRue, Esq. if void as to the defendants in error, by reason of the misnomer in Stephen’s name, could not be relied on as a bar to an action on the note. —13 Mich. 40, 43.

    Either the judgment is good, in which case it is a good ground for recovery, or it is void, in which event it leaves the right to recover on the note complete. The two counts of the declaration, that on the judgment and oh the note, being distinct and independent, setting up the judgment can not affect the right to recover on the note.
    2. Isaac Wixom not having been personally served with the summons in the Ingham county suit, and not having appeared therein, that judgment, even though valid, does not merge the note; but the right to recover on the original cause of action in such cases is well settled. — 4 Comst. 514; 9 Mich. 371-379.

    3. The objection to receiving the depositions of Long-year and Carpenter in evidence, is purely formal and technical. No objection is made to the dona fieles of its execution. Plaintiffs in error do not claim to have been misled or injured by want of notice of the adjournment. The commissioner remained at the place appointed two hours after the time first fixed, where it was their duty to appear, if they desired to attend the examination. But their failure to then appear shows they did not desire to attend. — 9 Sheply, 357.

    The statute neither forbids an adjournment nor requires notice to be given of it, nor is such the practice in proceedings of this nature, nor in any other proceedings, when notice has been first duly given of a hearing.
    If the commissioner could not make this adjournment, he could not have adjourned the examination over night, after he had commenced, in order to complete it, without new notice. *
    The attorney for plaintiffs in error had verbal notice of ‘ the filing of such depositions, more than three months before the trial.
   Cooley Oil J.

Stephens and Beatty brought suit in the court below against the Wixoms, upon a promissory note made by them and payable to the order of the plaintiffs. The declaration was upon the common counts, with a copy of this note attached, and it also contained a special count setting forth that the plaintiffs, by the name of James Stephens and James Beatty, had recovered judgment on this note against the defendants, before a Justice of the Peace, which judgment still remained .unsatisfied and in force. The count, however, showed that only one of the defendants was served with process in the suit before the Justice.

On the trial in the court below, the defendants objected to the admission of evidence of this judgment on the ground that it was between other parties than the parties to this cause, and was therefore irrelevant; but the court received it, and allowed it, against the objection of defendants, to be followed up with evidence that the suit before the Justice was commenced in the name of James Stephens and James Beatty, instead of John Stephens and James Beatty, by mistake. •

The position assumed by the defendants was, that the note was merged in the judgment rendered upon it, and, therefore, could not again be the subject of suit, and, at the same time, that it was not competent for the plaintiffs to have the benefit of the judgment by proving that it was intended to be rendered in their favor. In effect, the defendants claimed that the justice’s judgment was void, but that, nevertheless, it had the effect to merge the demand upon which it was rendered.

We are of opinion that no error was committed by the court in its ruling. If, by reason of the mistake, the judgment rendered by the justice 'was not valid, so that the plaintiffs could enforce it, then it would seem that it could not constitute a bar to a new suit on the note. The bar in such a case springs from the party having already obtained a higher security; and where ho has got no new security, his remedy upon the original demand is not taken away. , This was the view of the Circuit Judge, who held that the plaintiffs could not recover upon the justice’s judgment, but might have judgment upon the note.

The only other error- which is alleged in the case arises upon the admission in evidence of certain depositions taken on notice before a Circuit Court Commissioner. The notice was for the taking of the depositions at the office of H. D. Carpenter, at Lansing, -on September 26, 1867, at 11 o’clock a. ir. It appears that the commissioner attended at that time and place for the purpose of taking the depositions, but that neither of the defendants appeared, and that on account of the absence of one of the witnesses, after waiting two hours, the commissioner adjourned the taking of the testimony to his own office, in Mason, on the 2d day of October, 1867, at 1 o’clock p. m., at which time the depositions were taken. The defendants did not appear on the adjourned day, nor did they make any motion to suppress the depositions, nor does it appear that they ever, at any time, appeared at the place first fixed for the taking of the testimony, in order to take part in the examination.

The propriety of the commissioner in any case adjourning such an examination to a different town from that fixed in the notice, is so questionable that we are not disposed to lay down any rule that shall encourage such a practice. Neither, on the other hand, do we think that parties who have been regularly served with notice are to be 'encouraged to remain away from the examination and watch for technical errors to be taken advantage of • after-wards. Undoubtedly the party notified in such a case has a ”ight to appear and participate in the proceeding at any time before it is fully closed; and if the defendants had shown in this case, that they went to Mr. Carpenter’s office for that purpose, even after the expiration of two hours, especially if the adjournment was not brought home to their knowledge in time for them to appear at the place .of adjournment, it would have been competent and proper, we think, for the Circuit Court, on motion, to suppress the depositions. No such motion, however, was made, and there is nothing in the case from which we can infer that the defendants were in any way wronged by the adjournment. It was unquestionably made by the commissioner in good faith, and as it was only to his own office at the county seat, there was nothing about it which can be regarded as particularly unreasonable, or likely to result injuriously to the defendants. The commissioner had reason to believe, after waiting, two hours, that the defendants did not mean to attend, and if, after that, he consulted his own convenience in the talcing of the testimony, the defendants ought to have shown the court how they were injured before they could be heard to complain.

We think, under the circumstances of this case, the judgment should be affirmed.

The other Justices concurred.


text:
    James Capling v. Johannes Herman.

      Foreign judgment, authentication of. Tlie exemplification of a judgment of a foreign court, which is admitted to have had common law jurisdiction of the subject matter, and ■which is authenticated by the seal of the court, and the signature of the clerk, is sufficient, both at common law and under our statute.
    The record in such case showed that the suit was commenced in the Court of Queen’s Bench of Upper Canada, in which issue was joined at Toronto, and there was a recital of the trial of that issue before the Chief Justice at Perth, and of the return of the proceedings to Toronto, whereupon the court rendered judgment upon the verdict. Such a recital shows the trial to have been in the same court which rendered the judgment, and justifies its rendition.

      Heard January 8th.

      Decided January 11th.

    Error to Washtenaw Circuit.
    This was an action of debt, brought upon a judgment recovered in the Court of Queen’s Bench, at Toronto, Canada.
    The plea was the general issue, with notice that defendant would insist that there was no such record as that declared upon.

      The case was tried by the court without a jury, upon an exemplified copy of the record of the judgment, and a stipulation in the following words:
    “It is hereby stipulated that on the trial of the above entitled cause, it shall be and is hereby admitted that the Court of Queen’s Bench, for Upper Canada, at Toronto, mentioned in the annexed exemplification of the record of a judgment rendered therein, in favor of the above named plaintiff, and against the above named defend r ant, was in existence from a time prior to the commencement of the' proceedings therein mentioned, and has so continued to the present time, having common law powers and jurisdiction of the kind of causes therein mentioned.
    “ That the signature of the said exemplification is the genuine signature of the clerk of said court, at the time of the date thereof; and that the seal affixed to 'the said exemplification is, and was, at said date, the genuine seal of said court.”
    The following is the finding of the court:
    “This cause, neither party having demanded a jury, was tried by the court without a jury, and after hearing the proofs and allegations of the parties and the arguments of counsel, the court now finds the following facts, to wit:
    That the exemplification of the record of a judgment, which is hereunto annexed and made part of this finding, was received in evidence, subject to the objection of the defendant’s counsel, as to its being sufficient proof of the existence of said judgment, and in offering said exemplification it was admitted by the counsel for the defendant that the Court of Queen’s Bench, for upper Canada, at Toronto, mentioned in the annexed exemplification of the record of a judgment mentioned therein, in favor of the above named plaintiff, and ■ against the above named defendant, was in existence from a time prior to the commencement of the proceedings mentioned therein, and has so continued to the present time, having common law powers and jurisdiction of causes of the kind therein mentioned; that the signature to the said exemplification is the genuine signature of the clerk of said court, at the time of the date thereof; and that the seal affixed to the said exemplification, is and Avas, at said date, the genuine seal of said court, as appears by the stipulation signed by the defendant’s attorney, and at- • taohed to said exemplification.
    And the court iioav decides that said exemplification, taken in connection with the admissions above mentioned, is sufficient proof of the existence of said record, as contained in said exemplification, and is admitted in evidence.
    And the court, thereupon, further finds that a judgment Avas duly rendered and recorded on April 5, A. 13. 1864, by the Court of Queen’s Bench, for Upper Canada, of the United Kingdom of Great Britain and Ireland, at Toronto, in the Province of Upper Canada, in favor of said, plaintiff, and against the said defendant, for the sum of $500 damages, and $100.70 costs of suit, as alleged in plaintiff’s declaration in this cause; that the parties, plaintiff and defendant, duly appeared by their respective attorneys; that the said Court of Queen’s Bench had jurisdiction of the said cause and the parties thereto.
    And the court further finds that the said judgment in said exemplification mentioned, has not been reversed, vacated, nor in any manner satisfied; and the court further finds that the parties, by their respective attorneys, at the trial conceded that if the plaintiff was entitled to judgment in this cause, he aauis entitled to interest on the amount of the judgment, so rendered by the Court of the Queen’s Bench, at the rate of six per cent, per annum, from the date of said judgment; and that the legal rate of interest in Upper Canada is six per cent, per annum.
    And the court further finds that there is Auq on said judgment, for principal and interest on the same, at the rate of six per cent., the sum. of $740.22.
    On the trial the defendant’s counsel objected to the sufficiency of said exemplification; that it did not appear that the proceedings at Perth were transmitted to the Court of Queen’s Bench, at Toronto, in accordance with the law of Canada, which objection is now overruled by the Court.
    From the foregoing facts the court deduces the following conclusions of law:

      First: That the exemplification with the admissions
    made by counsel in relation thereto, is sufficient legal proof of the existence of the judgment therein mentioned.

      Second: That such judgment existing, the plaintiff is entitled to recover judgment thereon, against the said defendant, for the sum of $740.22, with his costs of suit.”
    To which finding the defendant excepted.
    The other facts necessary to an understanding of the opinion are stated by the court.

      S. F. Fugle and O. Joslin, for plaintiff in error.
    The only evidence in the case is the transcript, or, as it is called, exemplification and stipulation, together with the admission as to the rate of interest in Canada.
    The court will examine the evidence in this ease, so far as to see whether it supports the conclusions of fact; and also the finding of facts to see whether they support the judgment. — 13 Mich. 118.

    The finding clearly and explicitly shows thé judgment to rest upon the exemplification and the annexed admissions. We contend these are not sufficient, and the judgment must be reversed.
    This copy of an alleged judgment record is not authenticated according to the statute of Michigan, nor according to the common law.

      First: As to the statutory mode. And this document must be considered in a two - fold view, to wit: As com-
    posed of the records of two distinct tribunals, and not as merely the record of the proceedings of tlie Queen’s Bench alone. In the latter view, most favorable to the defendant in error, it is not authenticated according to statute.— Comp. L.%l/S60-1.

      But considering it as a record of two different tribunals, which it is in fact, its authentication, according to statute, is wholly defective.
    At common law it is not properly authenticated, considered merely as a record of the Queen’s Bench.
    But it contains other proceedings which are the records of another court than the Queen’s Bench, and as to such parts the authentication is totally and intrinsically defective.
    The modes of authentication are: FirstV The great seal of state. ' Second: Sworn copy. Third: Certified copy by an officer shown to be duly authorized.
    In this case it is neither of the first two, and is defective in the third. — 2 Caine's Cases, 155; 2 Cranch, 187; 35 N. H. 584; 14 Id. 102; 6 Id. 152; Id. 567; 10 Foster, N. H. 78; 8 Ind. 184; 12 How. 513; 14 Id. 426; 24 Vt. 501; 1 Iowa, Green, 78; 5 Met. 436; 3 Johns. 310; 13 Pet. 24 FT. Y. 894; r36 Id. 140; 8 Mass. 272; 2 Conn. 209; 89; 7 Id. 484• See also as to authenticating copies of records. — 2 Phil. Eo. (C. and II. notes') 181-849; 1 Car. and K. 655; Bull. FT. P. 229; 1 Greenlf. Ev. § 485, 507 514 notes.

    The above cases establish the principle, that the certifying officer must be shown to have the authority to certify, Avhich Avas not shown in this case as to the records from Perth.
    The statement in the finding that “the court thereupon finds judgment Avas duly rendered,” etc., is a conclusion of Irav, rather than of fact, and must be so regarded in this case. —18 Mich. 121.

    Neither the records transmitted from Perth, nor the judgment itself, appears to have been signed by any officer of the respective courts, both of Avhich signatures are necessary.— 24 Fí. Y. 894-

    Unless the transmission from Perth is sIioavii to be according to the laAV of Canada, the Corirt of Queen’s Bench does not appear to have the jurisdiction of the cause, as the above authorities show.

      This court will not take judicial notice of the laws of a foreign country.— Qomp. L. §1316; 1 la. (Green) 78; 1 Greenlf. Ev; 3 Johns. 310.

      A. Fetch, for defendant in error.
    1. The record of the judgment sued upon does not become unavailing by reason of the clause in it relating to the proceedings at “Perth;” nor is further proof required in regard to it.

      a. The record is a simple common law record of a judgment in a court of common law jurisdiction. The portion denominated in the brief of the plaintiff in error, “the records of the court for the County of Perth,” is the usual postea always found in such records. The postea showing the proceedings on the jury trial is a necessary part of the common law record of a judgment in Queen’s Bench, and like every other portion of that record is substantiated •when the record itself is proved.

      b. Official records do sometimes necessarily contain a statement of the action of, or documents issued from other tribunals or authorities. Thus Probate records may embrace returns from commissioners appointed to audit claims, or assign dower, or partition real estate. Causes jjending in court are often referred to Auditors or Beferees, and their reports made part of the record. So in appeal cases the proceedings in the court below are incorporated or recited in the record of the appellate court. In these and like cases, it was never held necessary to give separate proof of these parts of the record.
    The authentication of the record of the court in which the judgment is rendered, substantiates all that is alleged or shown therein in regard to them. — 35 N. H. 484; 6 Mon. 52.

      c. The rule is believed to be universal, that when a record of a court shows jurisdiction of the action and the parlies, and a judgment appearing to be duly rendered, all that relates to the method of arriving at that judgment is matter of regularity merely, and will not affect the validity or conclusiveness of the judgment in a suit to enforce it. Questions of mere regularity of proceedings can be raised only in the court where the suit is pending, or in the proper appellate tribunal.

      d. All judgments of courts of general jurisdiction, as well foreign as domestic, as well when the suit is in personam, as in rem, are held by all courts to be prima facie conclusive. Such judgment, it is said, may be impeached, by showing a want of jurisdiction, or that it was procured by fraud, or founded in mistake, or that it is irregular and bad by the local law; but, as against a regular record, the burden of proof is on the defendant to show the defect.— Story’s Confl. of Laws, §§ 603-609; 2 Swanston, 326; Doug. 1, and note; 11 Adol. and El. 179; 2 Car. and Payne, 88; 2 Barn. and Adol. 757; Kent’s Com. 118, et seq. and notes; 10 Adol. and El. N. S. 152; 3 Swnn. 600; 1 Man. and Gr. 882; 3 C. B. 187; 9 Me. and W. 810; 6 Barb. S. C. 613; 1 Smith L. Cases, 834, 844, 848, and cases cited; 4 M. and S. 20; 4 Campb. 502; 4 Goto. 292; 26 :N. T. 146.

    The proceedings set out in the record must be presumed to be not only regular, but in accordance with the provision of the foreign law until the contrary be shown. — 2 Barn. & Adol. 951; 1 Gromp. Me. & Roscoe, 277; 4 Sandf. 126; 4 Bing. 686.

      2. The third point of exception — that the exemplification, even with the stipulation annexed to it, is not authenticated in any of the modes required by law- — -relates to the testimony in the case. Questions upon the authentication of an exemplification offered in evidence, can relate only to its admissibility, and does not go to its sufficiency. .

      a. We say first that this question does not here arise, because no objection was made on the trial to the admitting of this proof. The only objection was to its sufficiency. Its admission was without objection.

      1). This court will not review the testimony to see whether the Judge decided correctly or not. lie was not required to state the proofs which were given to authenticate the exemplification, and it no where appears in the finding that the evidence is all reported. All necessary evidence preliminary to admitting the exemplification must be proved to have been given. The existence of a foreign judgment must be proved like any other fact. — 3 Johns. 310.

      c. But if the court will review the finding and should also assume that the testimony reported is all that was given on the subject, there is no error.
    The exemplification was established within the meaning and spirit of our statute.— Comp. L. §4&60. That law recognizes the clerk of a court as the custodian of its records and seal, and his certificate under the seal, proof of the record. The second and third clauses of that section provide for additional certificates from the presiding judge of the court and of the proper officer of the government when the court is held under the great seal.
    But these last two certificates are merely for the purpose of showing the existence and jurisdiction of the court, the authentication of the seal of the court and the genuineness of the clerk’s signature. Without some evidence the court could not be assured of these. But where other proof of these facts are given it is sufficient. Here the defendant in error has solemnly admitted all this. His admission appearing in the record is stronger assurance than any certificates could be of the existence of the court and of the genuineness of the seal and the signature of its clerk. Against this he can not deny the authenticity of the exemplification.
    At common law also this proof is sufficient.
    One of these methods of proving a foreign judgment, as laid down by Oh. J. Marshall, in Church v. Hubbard, 2 Cranch, 187, and repeatedly approved by other courts, is by the certificate of an officer authorized by law, ivhidi certificate must be properly authenticated.” The clerk of a court is the officer authorized to keep the records and seal of the tribunal, and to certify its records; but what is a proper authentication of his certificate ?
    The certificate of the judge of the court, with a certificate under the great seal, or other authorized certifying officer, is the most .usual evidence. But this is not necessary. Any proper evidence, of the genuineness of -the clerk’s signature and of the seal of the court is sufficient. — 7 Cow. 434; 7 Johns. 514; 8 Mass. 273; 6 Foster, 152.

    3. The fifth objection — that it does not appear in evidence that the Court of Queen’s Bench had jurisdiction of the parties — is equally without foundation. We must look to the record itself for this. So exclusive is this held by some courts, that all parol evidence of it has been rejected. 10 How. 348; 18 Pick. 393; 20 Me. 128; 26 Vt. 748.

    This record shows that the defendant was summoned by virtue of a writ issued on the first day of April, A. D. 1864, that the plaintiff declared by his attorney that the defendant put in a plea of not guilt)', by his attorney; that the parties appeared by their respective attorneys and tried the case before the jury at Stratford, and again, in like manner, when the judgment was rendered at Toronto.
    A statement in the record that the defendant appeared by attorney, is uniformity held to be sufficient, if hot conclusive evidence, that the court had jurisdiction of the person.— 4 Sandf. Ch. 126; 6 Wend. 477; 1 Hall’s Rep. 155; 10 Peters, 446; 10 Lou. 189; 3 Sumn. 604.

    4. The stipulation filed in the court below admits the common law powers and the jurisdiction of the Court of Queen’s Bench, in cases of the kind mentioned in the record. This concludes the party so stipulating.
   Graves J.

The defendant in error prosecuted an action of debt in the court below, against the plaintiff in error, and declared upon a judgment alleged to have been recovered by Herman against Capling in the court of “Queen’s Bench, for Hpper Canada, at Toronto, in Upper Canada.” The case was tried before the court below, without a jury, and the questions to be determined arise upon exceptions to the finding of the court. It appears from the record that on the trial the plaintiff below, in order to maintain his case, offered in evidence what he claimed to be the exemplification of the record of a judgment corresponding with that set forth in the declaration, and that it was received in evidence, subject to the objection by the counsel for Capling as to its being sufficient proof of the judgment in suit. It also appears that at the time the exemplification was offered in evidence it was expressly admitted on the part of Cap-ling that the Court of Queen’s Bench, for Upper Canada, at Toronto, mentioned in the exemplification was in existence from a time prior to the commencement of the proceedings specified in the exemplification, and had so continued to the time of the trial, and possessed common law powers and jurisdiction of the kind of causes mentioned in that case.

It was also, at the same time, expressly admitted, on the part of Capling, that the signature to the exemplification was the genuine signature of the clerk of said Court of Queen’s ‘Bench, at the time of the date, and that the seal affixed to the exemplification was at said date, and, at the time of the trial in the court below, the genuine seal of said Court of' Queen’s Bench.

The Circuit Judge made the exemplification a part of his finding, and held that, under the admissions on the part of Capling, it was sufficient proof of the existence of the record it assumed to represent, and proved the judgment described in Herman’s declaration.

The objections made by the plaintiff in error are all based upon the proof made of the judgment of the Queen’s Bench-, and they are of two kinds: First: That the exemplification, when aided by the admissions, was not authenticated, as required by our statute or the common law; and Second: That the exemplification itself contains fatal imperfections. On the first ground, it is claimed that the document purports to represent the records of two distinct tribunals; one comprising proceedings had in the Court of Queen’s Bench, at- Toronto, and the other exhibiting proceedings 'had in a court at Stratford, in the County of Perth, and that the authentication is insufficient for an exemplification so constituted.

An inspection of the instrument is sufficient, in our opinion, to show that its nature is here wholly misapprehended, and that instead of its setting forth the proceedings of two distinct courts, it evidences a record in the Queen’s Bench only. It imports the commencement of a suit by writ issued out of the Queen’s Bench; the joining of an issue of fact by the parties by their respective attorneys; the transmission of that issue to the assizes for the County of Perth for trial; the trial in that county, and the return of the postea into the Queen’s Bench by the judge who tried the issue; and the subsequent judgment of the Queen’s Bench upon the verdict shown by the postea. That portion of the instrument which the counsel for the plaintiff in error supposed to belong to the proceedings of another court, purports to be a mere copy of the postea, which by the common law practice was only the return of the judge, who tried the cause, of the proceedings at the trial, drawn up in such language as made it fit to form a part of the judgment roll, and which, as in this instance, was copied into -the roll. <

This postea, or return of the judge sitting at nisi prins for the trial of the issues of fact joined in the Queen’s Bench, was the legal and duly authenticated memorial to authorize the award of judgment by the court in which the issue was made up.

It is seen, therefore, that the exemplification imports a record in common law form of the orderly proceedings in a single case.

Upon the question of authentication there can he no doubt.

Our statutes provide — Gomp. L. J¡%61 — -that the records and judicial proceedings of any court, in a foreign country, shall be admitted in evidence in the courts of this state, if authenticated in a particular manner.

The admission is authorized if the proceeding has the attestation of the clerk of such court, with the certificate of the. Chief Justice that the person attesting is such clerk, and that his signature is genuine; and with the further certificate of the Secretary of State, or ocher officer holding the great seal, purporting that the court is duly constituted, specifying generally the nature of its jurisdiction, and verifying the seal and signature of the clerk, and of the Chief Justice. In this case there was a seal, and the attestation clause declared it to be the seal “of our said Court of Queen’s Bench for Upper Canada, at Toronto.”

And this was followed by the signature of the supposed clerk, who subscribed himself as “L. Heyden, Clerk of the Crown and Pleas.”

It is seen that the only purpose of the certificate of the Chief Justice in such a case as this, would be to prove thereby that the person attesting was clerk of the court, and that his signature was genuine; that the object of the certificate of the Secretary of State would be to show the due constitution of the court, the general nature of its jurisdiction, and to verify the seal and the signatures of the clerk and Chief Justice.

. It is true that in the present instance these last named certificates are omitted; but by the written stipulation of the plaintiff in error, the facts to be established by them are for this case completely proved. By that he expressly admitted the existence of the court and the general nature of its jurisdiction. He likewise admitted that the signature of Hoyden was the genuine signature of the clerk of “said court” at the date of the exemplification, and that the seal was the genuine seal of “said court.”

If ho had permitted the exemplification to be introduced as evidence without the stipulation and without objection, he would have been concluded, and the exemplification would have been well received as evidence. As it is, his written admissions must be taken as dispensing with the formal proof which the statute specifies. But if this were otherwise, we think that the judgment was sufficiently proved at common law; and the statute itself expressly authorizes the proof of foreign judgments according to the rules of the common law. — 2 Comp. L. § J$62.

Various objections were urged under the second head, all of which we think untenable.

It was claimed that the proceedings sent from Perth do not appear to have been authenticated, and that it is not shown that they were transmitted according to the law of •Canada.

The character of that part of the document embracing the proceedings at Perth has been already commented on, and it has been shown that it was an integral part of a common law record embodying the postea, or return of the judge at nisi prius, who had been assigned to try the issue joined, in the Queen’s Bench, and could not be considered as a matter foreign to the record. As it stands before us, it is as muph a part of an entire record as any other portion, and it appears to be, in all respects, regular, and in due form. íf the record is properly authenticated, and not apparently invalid, the part embodying the postea is not open to the objections made to it.

It was also urged that the record did not show that the court had jurisdiction of the parties.

It was admitted that the com*t was one of general common law jurisdiction, and an inspection of the record shows that the plaintiff therein appeared by “James Alexander Carroll,” attorney, and that the defendant by “David Home Lizars, his attorney,” pleaded not guilty; that the plaintiff took issue upon the plea; and that on the trial before Chief Justice Draper, the parties appeared “by their respective attorneys within mentioned.”

This statement in the record is prima facie evidence that the party appeared by attorney and that the latter was regularly constituted. It follows, therefore, that the Court of Queen’s Bench must be considered as having acquired jurisdiction over the parties, and by the stipulation the plaintiff in error admitted that the subject matter was within it.

After a somewhat critical examination, we have not been able to discover any fault in the exemplification of the record of the Queen’s Bench, and we think it was properly received by the court below, and was rightly considered a basis for recovery there.

The view we have taken disposes of all the questions presented, and we think that the- judgment of the Circuit Court was right, and should be affirmed, with costs.

The other Justices concurred.