Volume 2 — Michigan Nisi Prius Reports

<p>Intoriocutory order — no appeal from.</p>

<p>The law imposes the duty of maintaining a fence, upon the owners and occupants of a railroad respectively, as well as upon the company first organized, and without ‘confining it to either.</p> <p>A law providing for the recovery of double damages, was repealed after the rendition of a verdict, but before the entry of judgment thereon. Held, in such case that judgment should bo •for'single damages only.</p>

<p>In this State there is by statute no non-bailable capias by which suits may be commenced, but in all suits commenced by capias there must he endorsed on the writ an order to hold to bail, made by the Circuit Judge or Circuit Court Commissioner, on a proper affidavit</p> <p>2. This affidavit to hold to bail must be positive, and must make out a prima fade case against the defendant.</p> <p>3. An affidavit to hold to bail in an action for alleged representations on a sale or exchangeof lands, if such action may be commenced by crpias, should allege, in substance, that the de» fendant knew the representations to be false, and that they were made by him with the In» tent to deceive and demand the pliantiff.</p>

<p>roporty descending to a decedent from his father, passes to his maternal grandmother, where she is nearest of kin to decedent, though she was not related, by blood to the fathor.</p>

<p>Error to St. Clair Circuit.</p>

<p>A commenced suit in the Circuit Court for the county of Wayne, against D and H. D. then resided in N. Y. and H in Wayne Co., Michigan. Ponding the suit, H moved to Illinois. Defendants then apply, under Act of Congress approved March 2,1867, to remove the cause to the U. S. Court. Application denied.</p>

<p>I» criminal prccoeelings against A., on complaint of B., for adultery Yitfh B.’a wife,B/0 "wife is a competent witness.</p>

<p>A Circuit Court has no general discretion to allow an appeal from the judgment of a ustico of the Peace based upon the equities of the case.</p> <p>Such appeal can be allowed under Sec. 190, of the Justice's Act, only where the party desiring to appeal was prevented from doing so within five days after judgment rendered, by circumstances beyond his control, and it is not beyond his control to see that the. office before whom he swears to an affidavit, signs the jurat, before lie files it with the Justice.</p>

<p>After judgment for the defendant in replevin, an execution was issued in form of a plaintiff's execution in assumpsit. After return unsatisfied, tliis suit was brought on the replevin bond. Held, on the trial, that the execution so issued colild not bp received in evidence, it not being an execution in the replevin suit.</p> <p>The plaintiff thereupon submitted to a voluntary non-suit, with leave to move te Set the same</p> <p>On motion to set aside the non-suit and for leave to amend such execution, Held, that the de* fondants could only be made liable on the bond by the,return unsatisfied of an execution in the replevin suit, and that the amendment asked for ought not to he allowed for the purpose of creating a liability not already incurred.</p>

<p>Error to Lapeer Circuit.</p>

<p>The doctrine is well settled that a vendor of land, if he has taken no security, although lie lias made an absolute conveyance by deed, acknowledging full payment of the' consideruth n, yet retains an equitable lien for the purchase money, unless there be an express or implied waiver and discharge of it. '</p> <p>A conveyance by the grantor without security, for the purpose of allowing the grantees to execute a mortgage on the property to a third person as security for a loan of money, to be used in payment of a portion of the purchase price, the grantor taking the grantee's personal bond, without security, for the payment of the remainder of the purchase price, is not a waiver of the equitable lien to such remainder subject to the mortgage.</p> <p>And in case of a sale of such promises by advertisement or foreclosure of the mortgage so given, such eqitablo lien for the remainder of the purchase price may bo enforced against any surplus money remaining after payment of the mortgage and costs of foreclosure.</p>

<p>Newspaper — whero published.</p>

<p>Case commenced before John Stockton, Esq., a Justice of the Peace, of Macomb County. The declaration alleges certain trespasses on the plaintiff’s farm, lying on the southerly bank of Clinton river, and bounded on the northerly side by Clinton river, in said county, committed “ on. the first day of April, 1869, and divers days thereafter, in passing to and fro across said land by horses and men in towing vessels and in navigating said river, and usual allegations of trespass. The plea is the general issue, with á notice that the close, &c, in which the supposed trespasses were committed was the soil and free-hold of the defendant, and that defendant in his own right entered upon said land as his own freehold, &c., and further that the same was and is adjaeent'and along the banks of Clinton river, a navigable stream, which has been used by the public from time immememorial for the purposes of navigation, and that during all that time the public in using the stream for the purposes of navigation, have, in floating rafts, boats, barges and sailing vessels, up and down said stream, 'found it necessary to tow the same, and that for such purpose the said bank or bolder of said stream has been used as a path- or way in passing up and down said stream by men and animals in towing as aforesaid, without let, trouble, hindrance or molestation, from all and any person owning 'lauds on the said bank of said river.— That the defendant was the captain of a vessel or schooner nsecl in passing up and down said stream, and the acts complained of was done in the necessary towage of said sehooner.</p> <p>A bond was given and the case certified up to the Circuit- Court.</p> <p>It was conceded that the plaintiff was and is the owner of the land described in the declaration, and that it extends to and is bounded by the Clinton river on the north;</p> <p>It was then proved by the plaintiff that on the first day of April, I860, his fences ran into the river, and the defendant was on and crossed the land with one horse, towing a vessel. Defendant was seen, tliore twice on the land, towing, and the plaintiff forbid him and told him he would sue, and defendant again came on to the land, and for this plaintiff brought suit; whereupon the plaintiff rested his cause.</p> <p>The defendant then proved by Hon. Porter Kibbee, that he was the Commississioner named in the law of 1848, p. 4Í-8, und had known and been acquainted with Clinton river since 1886. That as-such Commissioner he saw most of the parties living along the river a id spoke to them about building three or four bridges and raising the bank in some places to make a tow-path. He did not recollect any obligations being made. No steps were taken to condemn the 1 tnd or by legal proceedings to secure' the right of way from the owners. lie talked with most of the owners about the right to what was nocessary, and no objections wore made. There was no survey nor any defined width for a tow-path established or agreed upon.</p> <p>Nathan Moser then occupied the farm now claimed by plaintiff. Could not state whether any improvements had then been made on the farm. Mr. Moser made no claim for compensation. There was a farm on the bridge next abovp. Messrs. Dickinson &_Stockton had charge of making the repairs.</p> <p>[Considerable further testimony was given relative to the use of the premises along the river bank as a tow-path, and as to improvements made in clearing the river of snags, repairing of bridges, &c., which it is deemed unnecessary to report. —Kep.]</p>

<p>Error to Van Burén Circuit.</p>

<p>Error to Lenawee Circuit.</p>

<p>Motion to dissolve an injunction.</p>

<p>Joining idsuGj a waiver of irregularity in sorvice of summons.</p> <p>The precise language of a decoded person wlio testifio on u former trial not icquired — substance sufficient,</p> <p>A promissory note lias no legal existence until its delivery.</p>

<p>A erected a dock on his promises on the bank of a navigable river. B, an adjoining lot owner • was about to construct a dock to extend out into the river some distance beyond A’s dock; whereupon A filed his bill of complaint against B, praying for an injunction restraining the defendant from erecting the proposed dock, setting forth that if the proposed dock be constructed, it would make it inconvenient for boats to approach and leave complainant’s dock, thereby interfering with and obstructing the free navigation of the river. Held, in such case,</p> <p>1. An injunction will not bo granted unless the obstruction complained of will be a practical hindrance to the^uWtc use.</p> <p>2. Where a complainant’s legal right is doubtful a court of equity will not interfere by injunction before the legal right has been established at law.</p>

This was an action of trespass brought by the plaintiff, Foster, against the defendants, Wiley and Monteith, for the taking on execution and disposing of a certain buggy belonging to the plaintiff.— The execution was issued on a judgment rendered in Justice s Court, in favor of Wiley against Foster, which judgment Foster claimed to have duly appealed to the Circuit Court.

<p>Error to Eaton Circuit.</p>

<p>Error to Lenawee Circuit.</p>

<p>Error to Lenawee Circuit.</p>

Motion to dissolve injunction on bill and answer. The hill is filed for divorce on the ground of extreme cruelty, and asks for alimony.

<p>"Where the complainant’s equityis based’ upon a refusal .to perform a parol agreement to giro a mortgage upon .lands, the Court will not enforce it when such understanding or agreement was indefinite, and no steps wore taken toward repaving such mortgage, and agree- • ing upon its terms.</p> <p>"Where notice of taking testimony does not proceed from any party having the right to give it the Court will suppress such testimony as irregularly taken.</p> <p>Where a decree is taken for too largo an amount it will he reversed and cause remanded.</p>

<p>Petition to set aside decree and sale in a foreclosure suit.</p>

<p>A granito© of panels having notice of a prior unrecorded deed of such lands fa not a dona Jtde purchaser as against such deed and title.</p> <p>A deed is not void for uncertainty of description because it does not expressly specify that the land is in this Stato, where the circumstances cfcariy indicate the situation and location of such land.</p>

[This case was decided prior to the adoption, by the Supreme Gourt, of the recent rule as to pleas in abatement.] — Rep.

<p>General demurrer to hill by defendants, Stoddard, Lockwood and Barney.</p>

<p>Ja flBsnmpsit on a promissory note secured by a chattel mortgage, the -áefénce-being want of consideration for note and fraud in obtaining mortgage, whoa the mortgagee had sold tt *• mortgaged property upon due public notice, and the verdict indicated that tho jury hud given the defendant the v.alue of the property mortgaged, Held, that thg verdict was-against law, aud there being no objection t® tho charge of the Court, a new trial wa* granted on payment'of costs.</p>

<p>Error to Wayiio Giruuit,</p>

Judgment upon report of referee in favor of the defendant for costs, removed to the Supreme Court by the plaintiff upon writ of error and judgment below affirmed. Defendants filed certified copy of the order of the Supreme Court affirming the judgment below, and took an execution from this Court to satisfy the judgment obtained therein. Plaintiff moves to set aside the execution because, as he claims, 1. The execution should have isssued from the Supreme Court. 2.

<p>Error to the Recorder’s Court of Detroit.</p>

This action was commenced before a Justice of the Peace, the plaintiff declaring upon a certain, promissory note executed by the defendant, payable to the plaintiff or bearer, and dated December .2, 1868j'for the sum of $50, with 10 per cent, interest, due October 1st., then next following. Judgment was rendered in the Court below against the defendant, for ihe face of the note with interest. The defendant appeals from that judgment.

<p>T. gave his note which was partly written and partly printed. ^ The printed portion conclude with the words, “ with interest at.” After the note'was delivered to the payee, 1he words and figures" 10 per cent” were added after the printed word “at,” without the knowledge ^ or consent of the maker. The plaintiff was a bona fide holder before maturity.» Held, that tlio alteration should bo treaied as a forgery, anil that the case was not such as would bring it within the rule which would hold the maker liable on the ground of negligence.</p>

<p>Error to Van Burén Circuit.</p>

<p>4?roof of will — order of proofs.</p> <p>The ljxw requires that a person in order to make a valid will, should havea sound and disposing mind and memory. The mind need not necessarily be in its full vigor and power, but its faculties should be, so to speak, in working order, with an active power to collect And retain the elements of the business to be performed, for a sufficient time to perceive th^ir ol^vions relation to each other.</p> <p>In determining mental capacity, tho jury may look/at the provisions of the will, may consider tho history and relations of tho testator, his previous conduct and language in relation to those related to or acquainted with him, and lus previous determination as expressed by njin as to what disposition he intended to make of his property, as well as the testimony of witnesses who swear to his actual mental condition as witnessed by them at the time of making bis will \ and may consider the testimony of experts whoso opinions are predicated upon certain assumed facts, provided such assumed facts aro proved.</p> <p>The testator need not, in terns request tho witnesses to attest tho will. It is immaterial how the request is conveyed to the witnesses, if it appear that such request was the free and intelligent act of the testator.</p> <p>J»y improper and undue influence, is meant the dominion acquired over tho 'mind of another . which prevents tlie exercise of discretion and destroys freo will.</p> <p>Admissions made by legatees or others, after tho execution of the will, as to the sanity of the testator, are not admissible as bearing upon the question of mental capacity»</p> <p>Conflict in testimony — Rules as to weighing evidence, discussed.</p>

<p>Error to- Oakland Circuit.</p>

<p>Error to St. Clair Circuit.</p>

Upon the application of the relator in this case an order to show cause had been issued to the Commissioners of Highways, who had answered the same by affidavits, and on the hearing, a motion for a mandamus had been denied.

<p>Error to Keweenaw Circuit.</p>

<p>In July, 1847, A and B, as administrators of an estate, are licensed to sell two parcels of land A gave the bond and took the oath required by law, but B declined to qualify. A sold th» two parcels together, June 17,1848, and made his report of sale which was confirmed June 4,1£49, A executed a d*ed to the purchaser and received the last of th® purvtwifc money. Subsequently both adm inistrators filed thoir accounts which were allowed. In a suit in ejectment by the heir of decedent against one holding by mesne conveyances un dor the administrator's sale, Held,</p> <p>1. The omission to sell in parcels was a mere irregularity, not to be attacked collaterally.</p> <p>2. The statute does notrequire the purchase money to be paid before the deed is given. The administrator may give credit for not more than three years on three-fourths ®f the purchase money.</p> <p>U. The omisBiou to give a deed within one year from the date of order of sale cannot be urged agaiust the title.</p> <p>4, Thenon-joiuder of the administrator, who failed to qualify, iu the sale nml conveyance cun not be urged against the fcU-lo.</p>

Motion to quash writ of attachment' and set. aside the proceedings- thereunder, on the grounds : 1. That in the affidavit tor the attachment the deponent in seating the amount of the indebtedness of the defendant, did’ not in substance or in fact;use the qualifying words,- “ as near as may be,” as prescribed by the statute, § 4743, Comp. Lau-s., 2.

Motion by defendants to require the plaintiff to give security for costs, under § 4115, Comp. Laws. The only ground urged in the affidavit on which the motion was founded was that the plaintiff had not property liable to execution, sufficient to satisfy any execution for costs that might be recovered against her in the action.

The suit was originally commenc^l by attachment,-and at a previous term of the Court the writ, on motion of the defendant had been quashed and the proceedings thereunder set aside with $5 costs, on the ground of the insufficiency of the. affidavit. No declaration-had been filed in the case, áud no appearance entered on the part of the defendant at the- time of the order quashing the writ, save for the purpose of -making the motion.

<p>Motion to place the cause on the trial calendar.</p>

The plaintiff brought suit on a promissory note. Judgment was rendered for $114, being full amount of the note and interest, and, the full amount established at the trial. The defendant moves for judgment for costs.

<p>111 computing time with reference to the statute of limitation» ns applied to actions upon judg - mente, luid, that the day of entering the judgment shoo'd be excluded.</p>

<p>The statute against resulting trusts, applies only to thoso caaes iu which the deed is taken by a party other than the one furnishing tie consideration, with the consejil of the latter ■</p>

<p>Mala Fides. — Where a person purchasing within a few days after its execution, from the payee, a note payable to bearer, and knows the maker to be a responsible farmer of foreign birth and limited knowledge of English — the character of the payee’s business, that he is a transient, unknown and irresponsible vender of patents, and buys such note without asking any questions, and at a large discount, he is not a tona fide purchaser.</p> <p>A purchaser who is told the maker claims his note was given without consideration and will not paj’ it, is not a bona fide purchaser.</p>

<p>An order entered after verdict and before judgment, extending time for settling bill of exceptions isas valid and binding as if made after judgment.</p>

<p>S. L. 1869,101, provide that when suit is commenced against two or morejotnf defendants, one or more of whom shall reside or be found in the county wiieie the suit shall be brought,and ono or more of the defendants shall be served with process or declaration in tho county whore suit is commenced, the plaintiff in such action may sue out one or more writs of summons, or other w i it whereby such suit was commenced, directed to t£e county where such defend* ant not„Bo served may bo found. Held, that the statute applies only-to defendants jointly liable.</p>

<p>Suit commenced in"Wayne Circuit by declaration in assumpsit. Neither party resided in Wayne County. Defendant plead in abatement the' want of jurisdiction in the Courttlieo statute providing that actions of this kind shall he tried in the county where one of the parties shall reside at the time of commencement of suit. Held, on demurrer t-plea in abatement that tho law referred to does not pvavent the commencement of the 6uit in a county where neither party resides, but only the frialof the cause, and that tho only effect of the law in such case is to remove the cause for trial into a county in which one of the parties resided at the time of the commencement of the suit.</p>

<p>Appeal from Muskegon Circuit.</p>

This is an action against the railway company for damages occasioned by the delay of freight in'transit from Detroit to New York. The ease \Vas trie 3 by a jury, and a special verdict rendered.

<p>Error to St. Joseph Circuit.</p>

<p>Bill to quiet title, submitted ou pleadings and proofs.</p>

<p>Where a person actÍDg in good faith cuts timber from lands, .supposing' he has a right bo to* do, and by his labor and tho expenditure of money manufactures it into articles of much greater value than the timber, he acquires such a property in the timber thus* converted, it cannot be reclaimed by the trees. The remedy of the owner is by an action of trespass.</p> <p>A mere license to enter upon land and cut timber does not confer a legal right to do bo ; but it nevertheless protects the licensee so far as he has acted under it before revocation, and the protection does not depend upon tlie form, but upon what has been done, having proceeded by consent.</p>

<p>Interest of Township Cleric In a matter upon which the Township Board aro to take action, disqualifies such Clerk from sitting as a member of the Hoard, while such action to being takes.</p>

Action of assumpsit, upon an instrument oí which the following is a copy : Pine Grove, Feb 4, ’69.

Motion to dismiss appeal. The return of the Justice shows that issue was joined between the parties,and adds, “ The said cause was then adjourned until the 12th day of October, 1870, at one o’clock in the afternoon, at which time the parties again appeared'’before me, and the cause was tried before me without a jury. After hearing the proofs and allegations in the cause I took four days to delib’ erate. upon the matter.

<p>In an application for a dissolution of an attachment, under the act of 1851, the application it* sufficient so fur os allowing title to the property in the applicant, if from its terms it would reasonably be inferred that the property still continued to belong to the applicant. In an application to dissolve an attachment, under the act of 1851, the burden of proof is upon the plaintiff to show the existence of facts justifying the iesuingof the writ.</p>

<p>On a first application for a continuance, on account of absence of wltneas, the following facts should be shown: Materiality of the the testimony, necessity therefor, absence of witness, endeavors mado to procure his testimony or attendance at Court, the time when he is expected to return or when the party expects to procure his deposition, and that the application is not mado for delay, but that justice may bo done,</p>

<p>A policy of insurance had endorsed upon it as one of the clauses of forfeiture, the words, “If without written cousent hereon, there is any prior or subsequent insurance, this policy shall be void.” Subsequently, and withput giving notice to the company, an insurance was effected in another company. A few weeks after the second insurance an agent of the company first insuring, residing at another place, endorsed on the policy, the words :t-“Other insurance to the amount of $4,000 is hereby permitted, December 7,1887 ” In a suit ontho policy, Held, That upon sound rules of‘construction the consent should have been signed by the general agent at Chicago, witho it whose signature the policy was not tobe valid. The unsigned consent cannot bo sustained in the absence of the general agent’s signature, without distinct proof that it was made by some ope who was in fact, or by their conduct might he fairly supposed to be authorized to hind the company ip that-way, or was recognized and acted upon afterwards so as to bind them by some sort of estoppel. The policy became void if there was subsequent insurance without consent. And the actual consent given was not a consent to a past Insurance, but rather to one in the future.</p>

Demurrer to information for an assault by shooting,with the intent to kill and murder. The first count in the information charges the defendant with an assault upon one Perry, With intent to kill and murder Perry. The second charges him with an assault upon Perry with an intent to hill and murder, without naming the person he intended to kill. The third charges an assault upon Perry with intent to kill and murder one Williams.

<p>Replevin, under our statute, is a possessory action and may be brought against the agont of a party, if the property is actually in his possession, instead of the principal, whether the original taking of the property was lawful or not.</p>

In this case a petition was filed May 28,1870, praying for authority to raise the dam across the Kalamazoo River, on the land of the petitioner, on Sec. nineteen,(19,) Town two (2) south, range nine (9) west, so as to raise the water of said river 3J inches higher, making a rise of 8 inches in all. The objectwas to increase the power to propel additional machinery.

<p>Error to Oakland Circuit.</p>

<p>J, as the agent of M's creditors, prosecuted M under the non-imprisonment act. M thereupon suedJ for false imprisonment, claiming that ¡.the matters laid before the Justice.did not make out a prima facie case to authorize a warrant. The statuterequires “satisfactory evidence” to be adduced to the Justice as a ground-work for the proceeding • Held, That if there is any evidence legally tending to establish the statutory requirements, a court of review will not inquire whether it wóuld deem the evidence ‘‘satisfactory;” and that if the process was irrogular or wrongly or improvidently issued, if it was sued out through bad or indefensible motives, and yet was not absolutely void, the imprisonment was not false in any sense adequate to support the charge preferred. If it was wholly void and yet was obtained orallowed in perfect good faith and without any wrong motive not only J but the magistrate was liable.</p> <p>Proceedings under the non-imprisonment act available to others than judgment creditors.</p> <p>Held, That while a valid levy subsists on sufficient personal property, it Is irregular to commence proceedings under this statute, and that a party proceeded against in both ways simultaneously may allege the same for error. But the jurisdiction ought not to be assailed in an indirect manner on this ground, through the medium of an action for false imprisonment.</p> <p>The non-imprisonment act is constitutional.</p>

<p>Cohts. — —Rulo in oases appealed from J ustice’s Court.</p>

<p>Case made from Cass Circuit.</p>

<p>Heldt That tho declaration in trespass, in a suit-certified to this Court ón a plea of title from a Justice’s Court, may be amended so as to make the description conform to the description of the premises in the notice attached to the general issue; ifbeiug then apparent that when the pleadings were made up in the Justice's Court the error was overlooked by both parties.</p> <p>The proviso in section 1, of the highway law, that no second application «hall-be made within twelve months, is not a limitation on the part of the Highway Commissioners, who may acton such second application if they please.</p> <p>"Where the.record of proceedings in laying out a highway showed notice of tho meeting of the Commissioners to lay out had been served on three persons’, but did »not show them, to bo owners or occupants, or who were owners or occupants, the Commissioners had no power to lay out such highway, and their order laying out was a nullity.</p>

<p>Case made from Berrien Circuit.</p>

The complainant in this case, made and delivered to the Circuit Judge, a complaint in writing, setting forth that the defendant is in possession of certain described lands of the complainant, in the county of Van Burén, and that he holds the same unlawfully and against the. rights of the complainant, and praying for a zestitution of the same.

<p>Kvidonce as to the commission of other offences than' the one with which respondentia acoused, held inadmissible,</p> <p>Tiie weight of legitimate evidence is to bo left entirely to the jury.</p>

<p>Error to Hillsdale Circuit.</p>

<p>The authority to tax being regulated by statute, the law must be striotiy followed.</p> <p>Where an assessment roll can not be found in the office of the Supervisor, it is prima faeie evidence, that it never existed.</p> <p>If'the Overseer of Highways neglects to return to the Supervisor, under oath, the listof nonresident lands in his district, with amount of labor assessed thereon» and showing that the labor has not been performed or paid, the Supervisor has no authority to spread a tax upon the roll against the land. — Presumption if not found in the Supervisor’s office.</p> <p>Assessment roll not signed, invalid.</p> <p>There is no statute making tax deeds for tax of 1840, prima facie evidence of regularity of proceedings prior to execution of the deed. A paper purporting to bo an assessment roll for 1840, signed only by the Clerk, did not authorize the oollpction of the taxes mentioned in the roll.</p> <p>The certificate attached to the roll must conforto to the statute.</p> <p>Excessive Tax — Betterments.</p>

<p>Circuit Court Commissioners have no jurisdiction to act os Injunction Masters incases nof pending in the county in which they reside.</p>

<p>Held, An affidavit to entitle a person to an attachment under § 3670, Com. Laws, in Insuffioien to authorize the issue of the writ, in which deponent swore, u he believed the defendant was about to abscond,” &c.</p> <p>A bond for an attachment in a Justice’s Court, which has but one surety is irregular, merely and may be amended.</p> <p>A motion to quash proceedings, should state tersely and definitely the grounds of error relied</p>

<p>1. In condemning lauds for railroad purposes, questions of title are not to be considered by the jury.</p> <p>2. The report of the jury or commissioners must distinctly set forth the necessity of the taking, and they cannot properly make one which will warrant the taking of the land unless satisfied not only that the particular land is needed for the construction of the work, but also that the work itself is one of public importance.</p> <p>o. The proper course when ajury íb required of persons of a particular qualification is for the order to direct the summoning of such persons.</p>

<p>Whether, upon a motion to dissolve an injunction, after answer, the complaiuant may mid affidavits to contradict the answer, — quere.</p> <p>Injunctions mandatory in substance, though in form merely prohibitory, may bo grauted.— Buttojustify this extraordin iry process,a case of great urgency, to prevent irreparable injury, and clear of all doubt as to complainant’s title, must be presented.</p> <p>No property can be acquiredin words or marks which do not denote the goods or property, or particular place of business of a person. ECeld, accordingly, that no person, by prior use, can acquire an exclusive right to the use of the words “Mammoth Wardrobe,” as a sign or designation of aplace where a large amount-of clothing is kept.</p> <p>Without a suggestion of falsehood or a suppression of truth, there can be no fraud.</p>

<p>Error to Wayne Circuit.</p>

<p>Error to St. Clair Circuit.</p>

<p>In construing the statute which provides that suits may be brought agaiust corporations in the same manner as agaiust individuals, and that process may be served on the presiding officer, the cashier, the secretary or the treasurer thereof; or if there be no such officer, or none can be found, such service’maj he made on such other officer or member of such corporation, or in such other manner as the court in which the suit is brought may direct, Held, That substituted service can only bo made 'in that county where the corporation is lequired or expected tohavethose persons present who have the immediate supervision ot its general office business, and where some ope may fairly be supposable to be ready at all times to respond for it.</p>

C rtiorari lo Justice’s Court. Suit vras brought before J. A. Dyer, Esq., a Justice of the Pence, by the defendant in error, against the plaintiff in error, upon a promissory note,-date!

<p>A has a chattel mortgage eeecated by B. The Sheriff levies upon the same to satisfy a judgment In favor of G against B and sells the same. In an action brought by A agaius t the Sheriff for the conversion. Held, That the righte of mortgagees can only be divested by payment or tender of payment of their whole debt. Every security holder has a right to seek his money out of his security without proceeding against his debtor s personal responsibility; and the legal value of every security is the means it will furuHh of obtaining satisfaction out of the property.</p> <p>"While the Court will not assume judicially to know what any foreign law is, there is no principle which will justify them in holding anything void under foreign law which is lawful here until the varianco is shown. To that extent it may be presumed that a conformity exists between our laws and foreign laws. The Court will make no presumption that a transaction valid under our laws is not valid elsewhere.</p> <p>"Where an appraisement is'made in pursuance of a statute under oath, in tho course of the proceedings under which the party himself has acted, it would be going too far to say that such a valuation would be entirely worthless as evidence against him.</p>

<p>Error to Hillsdale Circuit.</p>

<p>CompxHxnantswerosucclin a court of law and judgment was rendered against them; a new trial was denied, and execution issued. Bill filed to restrain the sale of property on the execution and judgment set aside. Held, That the case was probably one in which all the claims of complainants have been urged in a court of law, and as no showing was mado hero that any stronger case could be made again, no ground for the interference of a court of equity existed.</p>

<p>Error to Ingham Circuit.</p>

<p> Quo Warranto </p>

<p>-Motion by appellee to dismiss appeal.</p>

<p>Where ajtiry is called to determine the necessity for taking lands for arailroadrand fcofiíx and determino the^compensation therefor the verdict must be unanimous in favor'of thr petition, or no rights in such lands can be acquired thereunder. '</p> <p>Requisites of petition for condemation oi lands for railroads, considered.</p> <p>Where the lands sought to bo appropriated consist of a atrip running through several distinct parcels, the ñuding of thejury should indicate the damages tb each separate and distinct parcel.</p>

The bill in this cause was filed December 2d, 1868. The complainant alleges, that on the 29th day of February, 1868, he was employed to farm the lands of the defendant; that to enable bim to carry on the farm, the defendant sold him certain personal property, and became surety for him by signing notes given to other persons for personal property bought of them; that the amount of both liabilities so created was about'$850 00; that to secure the defendant-the complainant…

<p>No Issue roll is required in certiorari,and hence no fee can be taxed for making one.</p> <p>The plaintiif In error, in certiorari cases, is ontitled to an attorney fee of $15, in case the judgment is reversed.</p> <p>Bub. 6, of. Sec. 1, Act 28, 8. ¿.1869, has no application to certiorari cases.</p>

The defendant in error commenced suit before a Justice of the Peace against A, in an action upon contract, and took out garnishee summons in. due form against the plaintiff in error, who, it was claimed was a debtor of the said A, which was served on a local or station agent of the plaintiff in error at Manchester, and not otherwise ; and after judgment against the principal defendant, the Justice rendered judgment in favor of the plaintiff in that suit, (the defendant in…

<p>Motion for now trial. Citation of authorities, where the ground for tho motion is newly disoov erpd evidence.</p>

<p>Exceptions to referee’s report.</p>

<p>In an action on the caso, for negligence, the plaintiff cannot recover unless there was negligence oti the part of the defendant, and freedom from contributory fault on the part of the plaintiff.</p> <p>Negligence is a violation of the obligation which enjoins care and caution in what we do, — is che want of such care ad men of onliuaiy prudence would use under similar circum-</p>

This is an action of trespass, and was submitted to the Court on the following stipulation of facts : It is hereby stipulated and agreed between the above named parties, by their respective attorneys, that the following is a correct statement of the facts in said cause, and that said cause be submitted to said Court, upon such statement, and the argument of counsel upon the law, at the present term of said Court. Statement of Facts.

<p>A defective certificate of sale of real estate, upon execution, may be amended by the person making the sale, even after his term of office has expired.</p>

This was a motion to set asidean order of the Circuit Court Commissioner of Saginaw County, transferring the above entitled cause from the Saginaw to the Wayne Circuit.

<p>Whenever a locality.lose3 its character as a place suitable for a place of residence and becomes essentially a manufacturing neighborhood, where the business generally carried on is hostile to and inconsistent with its uso as a place of residence, a court of equity will not interfere to prevent the carrying on of the business of manufacturing, even though the trembling motion and noise thereby occasioned, renders it almost impossible to use adjoining premises as a dwelling.</p>

<p>Where a defendant has any relief to pray, beyond what the scope of the complainant’s bill win' furnish him, ho must ñle a cross bill.</p> <p>To entitle a defendant to a decree against his co-defendant, a cross bill is necessary.</p> <p>Whero premises have been mortgaged, and subsequently parcels of or undivided interests ix* the same lands have been conveyed or incumbered, on a foreclosure of such mortgage th* premises must be sold in the inverse order of such conveyance or incumbrances.</p>

This case comes up from Justice’s Court on certiorari. The defeudant in error sued out a writ of attachment against the goods aud etiattels of the plaintiff in error.

<p>1. Whwe a person contracts to do certain work and furnish materials, and abandons his contract without fault of the other party, he will not be permitted, in a suit on a quantum meruit for his services and materials to recover a sum exceeding the contract pr'co. In such case the damages to which he is entitled, is the value of .the work done and materials furnished, not exceeding the contract price, less the cost of completing the work and any damages the defendant may have sustained by reason of such failure.</p> <p>2. Where such contract is abandoned through the fault of the employer, the employee may recover the value of his services and materials; and in determining the value of such materials and labor the contract of the parties may be considered, though such contract is not, necessarily, conclusive.</p>

<p>After the trial has actually commenced, the Court has no power to order that the names of ad ditional witnesses, known before the trial, may be endorsed upon the information.</p>

This was an action upon contract commenced in this Court for the recovery of damages — the plaintiff’s claim exceeding $300. On the trial the plaintiff recovered $80 77 damages.

<p>This is a bill to have a certain mortgage decreed to be satisfied and discharged. The mortgage was originally given to George Dixon, more than twenty years before the filing of the bill, and the complainant claims to hold the land through a chain of title derived by subsequent conveyances from the mortgagor and his grantees.— The mortgage was duly recorded in the office of the Register of Reeds for St. Joseph County, but the mortgage itself, and the bond or note accompanying the same, complainant alleges is not to be found, and he claims that the mortgage is presumed to have been paid, and that the mortgage and note or bond accompanying the same has been lost or destroyed.</p> <p>The executors in their answer deny all knowledge of any payment of the mortgage debt, and any knowledge of the mortgage itself, further than is shown by the record, and allege that they have searched the papers of the decedent, but cannot find the mortgage or any account whatever relating to the same, and are not willing to assume the responsibility of discharging the same, under the circumstances, as they might be held liable to the estate, and allege that from the correct business habits of the deceased, and their intimate knowledge of his business, as his counsellors and advisers in relation to his money matters in his life time, if the mortgage had been paid to him there would have been' some note or memorandum of it on his books or among his papers, or they would have been likely to have known of it, or the deceased would probably have executed and delivered to the person -paying the same, a discharge of the mortgage which had not been recorded by the party to whom he delivered it.</p> <p>They admit that complainant had applied to them to discharge the mortgage, but that they had declined under the circumstances and for the reasons aforesaid to do so. No specific averment of payment of the mortgage by any one to the mortgagee was averred in the bill, but it appeared from the evidence that the grantor of the complainant within a year or two prior to the death of Dixon, had called upon him in regard to having him go to the Register’s office and discharge it, and Dixon had told him that he would do so in a few days, but it was not convenient for him to do so then, and intimated that the mortgage was paid in full.</p> <p>No allegation in regard to this interview was contained in the bill. On the heaving no serious objection was raised to having the mortgage decreed under the evidence to be satisfied and discharged, but each party claimed to be entitled to a decree against the other for costs, and this was the main question in dispute.</p>

On the 11th of February, 1871, Paddock suéd out a summons against Kibbe, in assumpsit, before a Justice of the Peace, returnable February 20,1871, which was duly served and returned, andón the return day the parties appeared and by consent, adjourned the suit without putting inany pleadings, until the 15th of March, on which day the parties again appeared and' joined issue, the plaintiff declaring on the common counts, and the defendant pleading the general issue, and the…

<p>In an action brought against the owner of dogs, to recover damages for killing and “ worrying” plaintiff’s sheep,founded on Sec. 1645, C. L.y it was held that tho words, “drove, chased and hurried,” used in the plaintiffs declaration, are equivalent to or within the meaning of the word, “worried,” as usedin said section.</p> <p>The declaration alleged that the sheep were depasturing on the farm of the plaintiff* and in his possession when the wrong was done. Held, That this was a sufficient allegation that they were put of the enclosure of the defendant.</p> <p>The plaintiff is entitled to judgment for double the amount of the verdict and costs, in such case.*</p> <p>Costs by said Sec. 1645, limited to $5 00, to which, however, must be added the costs to be allowed to the prevailing party, by the Act of 1869, page 32.</p>

Lyman, one of the defendants in this case, applied on motion to the Court, supported by affidavit, for an order to set aside an order taking the bill as confessed against him. lie claimed to have appeared and served a copy of his answer on complainant’s solicitor, within the time to which by stipulation he was entitled in the case, but it appeared that not only was this denied by the opposite party but that no answer had ever been filed in the case, and the defendant had…

This is a bill filed to declare unconstitutional and void an act to establish a Board of Public Works in and for the City oí Detroit approved on the 18th day of April 1871, and that the Board therein named, to wit: Henry H. Leroy, William Pur. cell, Deodatus C. Whitwood and Julius Stoll, and the Board.of Public Works thereby intended to be created, may be restrained, prevented and prohibited from exercising or assuming to exercise any powers, authority or jurisdiction or…

<p>A licenso to keep and maintain a ferry, under cbaptct 25, of 'Compiled Zatos, is & personal trust, and is not assignable.</p> <p>To entitle the licensee to an injunction against one who fe naming trpim the route of sucTu licensee, he must have kept and operated a ferry in conformity with, tho requirement» of his licenser.</p> <p>The bond required by the licensee is a condition precedent to the enjoyment of any right under such license, and it seems that tbe giving and approval of eueft bond must be alleged Ira' the bill of complaint. *</p>

The respondent in this case was charged with having resisted one Byron, a constable, while he was engaged in an effort to keep the peace in attempting to arrest and convey to jail one Brewster, for an alleged breach of the peace committed in the presence of the officer.

<p>A Sheriff and his sureties in a suit upon his official bond, cannot object to any irregularity short of a jurisdictional defect in the judgment upon which the execution was issued, for the non-return of which a breach in the bond is assigned.</p> <p>The failure of the Sheriff to give a new annual bond, as required by the statute, will not release his sureties from liability on account of process placed in his hands for execution before such renewal is required.</p> <p>Some proceeding is necessary to declare his office vacant in case he fails to give such new bond, and he and Ids sureties cannot avail themselves -of the supposed vacancy as a defence to the action on the bond, without special plea, or special notice of the neglect as a defence</p>

<p>Motion for leave to file an affidavit denying execution of promissory notes.</p>

This case comes into this Court on an appeal from the judgment of a Justice of the Peace. In the affidavit for the appeal special matters are set forth which aré alleged as error. These special matters involve the question of the sufficiency of the affidavit on which proceedings were predicated in the Justice’s Court.

<p>A Circuit Court Commissioner has no authority to make an order allowing alimony.</p>

<p>A person guilty of adultery may he convicted of fornication, where the information is for fornication, as adultery embraces fornication. And where a person is charged with adultery he may bo convicted of fornication.</p> <p>Upon a trial on an information for incest, where the proof tended to show that the intercourse was forcible and against the will of the complaining witness with whom the intercourse was had, Held, that the accused might be convicted of incest, even if the jury should find that the force used was such as under the circumstances, to amount to rape.</p>

<p>Certiorari Jmm Justice’s judgment.</p> <p>Defendants in error were plaintiffs in the Court below.</p> <p>Thedeclarationwasverbalinassumps.it upon a judgment rendered in the Court of Common Pleas, in Clearfield County, in the Stato of Pennsylvania, at the March term thereof, in the year one thousand eight hundred.and sixty-seven, on the 20th day .of March, for one hundred and ninety-two dollars and thirty cents, damage» and costs of suit, in favor of said plaintiffs and against said defendant, and claim's three hundred dollars damages.</p> <p>Plea, general issue, and notice of the statute of limitations.— That there was no record of the judgment, and that there was no set-vice of process to warrant the judgment declared upon, and defendant had no notice of any of the proceedings.</p> <p>On the trial the plaintiff introduced, under due certificates, an exemplified copy of the judgment and proceedings, as follows :</p> <p>“ Amongst the records of the Court of Common Pleas of Clear-field County, Pennsylvania, to No. 165, January term A. D. 1857, is contained as follows, to wit:</p> <p>Appearance Docket Entry.</p> <p>W.B.& F. Reed & Weaver. 14 Eeb’y. vs. 165. Samuel Evans. Pnolb’y W. R’ff, $1 12£. £ci. fa. to 433, Sept. 1. 1863. Al. sci. fa. to 102, March T., 1867,'</p> <p>D. S. B. on single bill, dated 14th February, A. D. 1857, with warrant Prothonotary to confess judgment, and conditioned to pay plaintiff the sum of one hundred and nineteen dollars and thirteen cents, one day after date, with interest - from. date, with costs of suit, release of errors, &c.</p> <p>Read, Debt, $119 73.</p> <p>Int. from 14th Feb’y, 1857.</p> <p>Entered and filed, 14 Feh’y, 1857.</p> <p>Judgment.</p> <p>GEORGE WALTERS, Proth’y»</p> <p>Lien Docket Entry.</p> <p>Revived — Evans, Samuel.</p> <p>Reed ■&, WeaveT.</p> <p>No. 165,4lan’y T., $857.</p> <p>Entered 14 Feh’y, 1857.</p> <p>Debt, 8119 13,</p> <p>“ Copy op Praecipe.</p> <p>In the Court off Common Pleas of Clearfield Co., Pa,</p> <p> </p> <p>WALLACE, BIGLER & FIELDING,</p> <p>Att’ys for PPffs.</p> <p>22 June, 1866.»</p> <p>“ To Proth’y of the Com. Pleas,</p> <p>* September Term, 1863.’</p> <p>* Appearance Docket Entry’ of Scire Facias.</p> <p>Sciic Facias to revive Judgment.</p> <p> </p> <p>So ans. Sli’ff Faust,</p> <p>Pro. E. Carried forward. 125.</p> <p>Sh’ff Faust. 50.</p> <p>Al. Scire Facias to No. 102, March, 1867.”</p> <p>“ Clearfield County, ss.</p> <p>The Commonwealth of Pennsylvania.</p> <p>To the Sheriff of Clearfield County, Greeting:</p> <p>Whereas Reed & Weaver, on the 14th day of February, in the year of our Lord one thousand eight hundred and fifty-seven, obtained judgment in our County Court of Common Pleas.of Clear-field County, before our Judges at Clearfield, against Samuel Evans, late of your county, yeoman, as well a certain debt of $119 13, lawful money of the United States, with interest from 14th February, 1857, as also $1 12a- like money, which to the said plaintiff in our said Court we awarded and adjudged for their damages which they sustained by occasion of the detention of that debt, whereof the said defendant was convict, as appears to us of record, &c.; yet execution of said judgment still remains to be made, as we have been given to understand by the said Reed & Weaver, who hath besought us'to provide for them a proper remedy in that behalf ; and we being’willing that what is right in that behalf should be done, Therefore :'— We command you that by honest and lawful men of your bailiwick, you make known unto the said Samuel Evans that he be and appear before our Judges at Clearfield, at. our County Court of -Common Pleas, there to be held for Clearfield County, on the second Monday of September next, to show if any thing for him he has, or knows to say why the said plaintiff should not have the above judgment revived to continue the lien ■, and also why the said plaintiff should not have execution against him for the said debt and damages, according to the form, force and effect of the recovery and judgment aforesaid, if to them shall seem expedient.</p> <p>And further to do and receive what our said Court shall in that behalf consider and direct. And have you then and there the names of those by whom you shall make it known unto him, and this writ.</p> <p>Witness the Hon. Samuel Linn, President of our said Court, at Clearfield, the 29th day of June, Anno Domini, one thousand eight hundred and sixty-seven. D. F. ETZWEILER,</p> <p> </p> <p>Prothonotary.”</p> <p>(Returned on back.)</p> <p>To the Honorable Judges, &c.</p> <p>N. E. I.</p> <p>So ans. Sh’ff Faust.</p> <p>“ Copy op Praecipe.</p> <p>In the Common Pleas of Clearfield County, Penn.</p> <p> </p> <p>judgment — Returnable 21 March 1867.</p> <p>WALLACE, BIGLER & FIELDING,</p> <p>To Proth’y Com Pleas. Atty’s for Pl’ffs.</p> <p>9th March, 1867.”</p> <p>“ Copy op Statement.</p> <p>In the Common Pleas of Clearfield County, Penn.</p> <p> </p> <p>Int. from 14 Feb’y,. 1857, to 14 March, ’67, 72 04.</p> <p>Cost paid by pl’ff, 1 13.</p> <p>New Debt. $192 30.</p> <p>Int. 14 March, ’67.</p> <p>To Proth’y Com. Pleas.</p> <p>WALLACE, BIGLER & FIELDING,</p> <p>Atty’s for Pl’ffs.</p> <p>11 March, ’67.”</p> <p>[Here follows another writ of Scire Facias, with same return enclosed as above copy of writ, except it is dated March 11, 1867, and made returnable the 3d Monday of March, 1867. The record then continues:]</p> <p>“MARCH TERM, 1867.</p> <p>Copy op Appearance Docket Entry.</p> <p>W. B & F. Reed & Mason vs. Samuel Evans. Pro. E., cost, $1 25 Pro. E., 3 01 Sh’ff Faust, cost, 50 Att’y, 3 00 Too late for record, Paid by pl’ffs, By the Court. 2 50</p> <p>Alias Scire Facias to revive Judgment No. 165, Jan’y T., 1857. (See 43J, Sept., 1866.)</p> <p>So ans. Sh’ff Faust. And now 20 March, 1867, on reading the docket in open Court, and no appearance by defendant, on motion of Wallace, Bigler &</p> <p>Fielding, Esqs., judgment in favor of the plaintiffs for the •sum of one hundred and ninety-two dollars and thirty cents. Debt, $192 30. Int. 14 March, 1867. Judgment.</p> <p>D. F. ETZWEILER, Proth’y.”</p> <p>“ Lien Docket Entry.</p> <p>Evans, Samuel</p> <p>Reed & Weaver.</p> <p>No. 102, March T., 1867'.</p> <p>Entered 20 March, 1867.</p> <p>Debt, $192 30.”</p> <p>Copy of Note</p> <p>“ One day after date, I promise to pay the order of Reed & Weaver, the sum of one hundred and nineteen dollars and thirteen cents, with interest from this 14th day of February, A. D. 1857, for value received, without defalcation, and further I.do hereby empower the Prothonotary or any attorney o.f the Court of Common Pleas of Clearfield County, .or- elsewhere, or any court of record, to appear for me; Samuel Evans, and after one or more declarations filed as of the last, next or any subsequent term, to confess judgment against me for the. above sum, with cost of suit, release of errors in the entering of said judgments or issuing any process thereon.</p> <p>Witness my hand and seal, the 14th day of February, A. D. 1857.</p> <p>In the presence of SAMUEL EVANS. [seal.”J</p> <p>W. W. Betts.</p> <p>The above constitutes the ‘entire record as produced and proved before the Justice, with the exception of the alias writ Scire Facias above referred to in parenthesis, and also excepting the certificates of authentication.</p> <p>On producing this record the plaintiffs rested their case.</p> <p>On the part of the defendant, it was proved that the defendant-had lived in the State of Michigan since January, 1857; that no process for the renewal or revival of the judgment was ever served on him, and that he knew nothing of the proceedings by scire facias to revive the judgment. Some other matters relative to payment and arrangements to pay the note were proved, but not deemed necessary to refer to in deciding the question involved.</p> <p>The Justice rendered judgment for plaintiff for amount claimed.</p>

A writ of attachment was issued from a Justice’s Court, and levied upon the goods and chattels of the plaintiff in error.

. Application to Judge for an order to sell the personal property-attached; for the reason that, as alleged, the property is perishable.

Motion to change venue. This suit was commenced by summons issued November 9tb, 1869, returnable the 1st Tuesday of December, 1869, and served on some of the defendants November 9, 1869. Orrin Erskine, was not served. On the 27th of November, 1869, Mr. Chadwick entered the appearance of the defendants served. The declaration was filed on the 27th of December, and plea filed January 27th, 1870.

<p>Replevin for a stock of groceries, — Held, That wliore the quantity, kind and location of the property to be replevied is given in the writ so that no other properly than that claimed can bo taken, the description is sufficiently particular to comply with tho statute, and protect the rights of the defendant.</p> <p>A %eturn which nhows th'1 appraisement of goods replevied to have been made on oath administered by the officer, to make a tnio appraisement, sufficiently «hows in what manner in this respect the officer executed the writ.</p> <p>A declaration filed within ton days aftor the return day of the writ of replevin is in time.</p> <p>A neglect to file the declaration in time is no ground for quashing a writ. Such neglect can only be taken advantage of by rule to declare and judgment of non pros.</p>

<p>Whenever it appears that the consideiation of a paper between the original parties has been procured by fraud, proof of such fraud throws upon the holder the burden of proving that he got it in good faith, and gave value for it.</p> <p>A bonaf.de holder of negotiable paper is one who acquires the paper in good faith, for a valuable consideration, from one capable of transferring the paper, without notice of the consideration or of attending facts aud circumstances which would naturally lead uu honest man, using ordinary caution to make further inquiries.</p> <p>The rule is that an innocent purchaser of commercial paper takes it stripped of all equities between thjjs original parties to it, but where the instrument is nut the contract of the parties, where it is different from what they made, it or intended to make it, it cannot bo enforced in the hands of any one, unless indeed, the instrument in its changed form has been ratified by the parties so as to make it their contract.</p> <p>Adding the name of another drawer or maker to a bill or note, is a material alteration, such m> will discharge the original party not consenting thereto.</p> <p>Where it was claimed that the payee named in a promissory note procured the signature of the maker while such maker was intoxicated, the intoxication being brought about by the payee named in the note, Held, That if the maker-was so intoxicated as to be unconscious when he signed the note, such note would be void, even in the hands of a bonafde holder.</p>

<p>'Vhere a city charter provides, that certain public works shall be let to the lowest responsibl e bidder, with sureties, and that the same shall be advertised, Held, That the following provision in the advertisement for the work, by the Controller, viz: “Builders arc required to file a satisfactory bond with the Controller before the proposal* are opened conditioned that should they be found to be the lowest bidders they will enter into a contract, with good and sufficient sureties to perform the work,” was warranted by the charter, and that a party bidding, though the lowest bidder, has no right to insist upon the acceptance of his hid without first filing a bidders’ bond,</p>

<p>A person arrested without warrant bytho Marshal of the village'of Benton .Harbor muatb# taken before a Justice of the Peace of Benton township,, and this must appear on tho face of tho proceedings.</p> <p>A Justice cannot hear, try and determino a criminal charge upon a complaint alone.</p> <p>A defondant in a criminal c{ts$ cannot challenge peremptorily jurors'in a Justice’s Court.</p>

7 he plaintiff in error was tried by a jury and convicted before a Justice of the Peace, of assault and battery, and judgment was rendered against him that he pay a fine of five dollars anil costs'of suit, taxed at $24 83, and in default in the payment of said fine and costs within five days, that he be confined in the county jail for the term of ten days

<p>A defendant sued here in assumpsit on a judgment rendered in Ohio on a cognovit may* prove, under the plea of the general issue, any defence which in that State would be a good ground for setting aside the judgment, or an order to deliver up tho cognovit to be cancelled.</p>