AFFIDAVITS.

1. An affidavit that is not correctly entitled in a cause cannot be used therein. Whipple v. Williams,

115

2. A writ of error was sued out in the names of W. and R. On motion, W. was allowed to sever in the prosecution of the suit. Affidavits subsequently drawn up and entitled in the names of W. and R., were held to be erroneously entitled.

See STATUTORY FORECLOSURE, 1. Appeal, 6.

AGENT.

See PROMISSORY NOTES, 1. PRINCIPAL AND AGENT.

AGENT OF STATE PRISON.

Ibid.

The statute, Sess. L., 1842, p. 130, requires the agent of the state prison to give notice, in a newspaper, for sealed proposals for letting the convicts. The agent of the prison, without giving such notice, hired convicts to defendant for a term of years. The contract was held to be void the mode of letting prescribed by the statute being a limitation on the power itself, and not merely directory to the agent of the prison. Agent of State Prison v. Lathrop, 438

An order made by the chancellor denying a motion to stay a sale under a decree of foreclosure, and vacating a temporary order granted staying the sale until such motion could be heard and disposed of, cannot be appealed from. Romeyn v. Hale,

From Justices' Court.

93

1. Facts that come to the knowledge of a justice after the trial of a cause are properly no part of his return, and must be rejected. Savier v. Chipman,

116

2. A party who has stayed execution on a judgment against him in a jus tice's court cannot afterwards appeal. People v. Judges of Macomb Circuit Court, 134

3. Under the act, Sess. L. 1845, p. 98, a plaintiff against whom a judgment is rendered in a justice's court for costs only, amounting to less than four

dollars, may appeal, and no affidavit under sec. 2 of the act is neces-
sary to perfect the appeal in such case. Wilson v. Davis,

156
4. Where a statute provides that "if any party shall appeal," etc., from a
judgment rendered by a justice, "such party, his agent or attorney,"
shall enter into a recognizance: Held, the appeal might be taken and
the recognizance entered into by the person for whose use the suit was
brought.
Ibid.

5. Where an affidavit for an appeal from the judgment of a justice, under sec.
2 of the act, Ses. L. 1845, p. 98, was made by an attorney of the party
and stated, that plaintiff recovered five dollars more than was justly
and honestly due him, as deponent believed, from the facts and evi-
dence in the cause, which were fully communicated to him, it was held
sufficient. Austin v. Strong,

259

6. The recognizance for an appeal under the act, Ses. L. 1845, p. 98, must
be taken before the justice by whom the cause was tried.
Ibid.

APPEARANCE.

The omission of the clerk to enter defendant's appearance in a cause, is
mere matter of form, which may be amended by an order nunc pro
Norvell v. McHenry,

tunc.

277

ARBITRATION.

1. A submission to arbitration of the subject matter of a suit is a discon-
tinuance of the suit, and discharges the surety for costs. Dunn v.
Sutliff,

24
2. D brought a suit in attachment in the county court against V, who ap-
peared and moved to quash the attachment for an alleged defect in the
affidavit on which the attachment was issued, which motion was de-
nied. Issue was then joined, and the subject matter of the suit was
afterwards submitted by the parties under the statute (R. S., ch. 129),
to arbitrators, who made an award in favor of D, on which a judgment
was rendered by the court. V brought error, and insisted on the sup-
posed defect in the affidavit as a ground for reversing the judgment.
It was held,

(1.) That the submission of the subject matter of the attachment suit
to arbitrators was a discontinuance of the suit.

(2.) That as the court had power under the statute to render judg
ment on the award of the arbitrators, that part of the record anterior to
the submission might be rejected by the court.

(3.) That the submission was a waiver of all errors up to the time of
making it. Vanderhoff v. Bean,

463

ATTACHMENT.

An order made by the court, under R. S. 1858, for the sale of real estate
taken in an attachment suit, goes to the sheriff in office for the time
being, and not to his predecessor who served the writ of attachment.
Crane v. Hardy,

56

ATTORNEYS.

1. R. S., ch. 95, sec. 34, provides that any attorney, solicitor or counselor
may be removed or suspended, who shall be guilty of any deceit, mal-
practice, crime, or misdemeanor. The court may remove or suspend-
an attorney for other causes than those mentioned in the statute, which
is not to be construed as restrictive of the general powers of the court
over its officers. Mills, An Attorney,
392

2. A charge made against an attorney for the purpose of removing him, that
he is of notoriously bad character, not to be believed under oath, and
unworthy to practice as an attorney, is too general. Specific acts
should be charged, so as to give the respondent an opportunity of an
swering them.
Ibid.
3. But a charge that the reputation of an attorney for truth and veracity is
so notoriously bad that he is not to be believed under oath contains
good cause for removal, and is not too general.
Ibid.

AVERMENT.

See EVIDENCE, 4.

BANKRUPTCY.

What is a sufficient allegation that E. P. H. was the assignee in bank-
ruptcy of W. Williams v. Hubbard,

446

BANKS.

The directors and stockholders of a bank organized under an “An act to
organize and regulate the banking associations," Sess. L. 1836, p. 76,
and the acts amendatory thereto, commonly called the general bank.
ing law, are not liable for the payment of the bills, or other indebted-
ness of the bank, either as stockholders and directors of the associa-
tion or as partners. State of Michigan v. How,
512

See UNCONSTITUTIONAL LAW, 2.

BILL IN CHANCERY.

1. Where the discovery sought by a bill can only be assistant to the relief
prayed, a ground of demurrer to the relief will also extend to the dis-
covery; but if the discovery have a further purpose, the complainant
may be entitled to it, though he has no title to the relief. Manning
v. Drake,

34

2. Facts essential to the complainant's title to maintain his bill and obtain
the relief, must be alleged positively, and cannot be inferred from other
facts stated.

3. Accordingly, where a bill filed by a judgment creditor to reach land al-
leged to have been fraudulently conveyed to C by his debtor, set forth
the conveyance, and alleged that the debtor afterwards continued in

possession the same as before, and as he from time to time sold parcels of the land, deeds were executed by C to the purchasers, or to the debtor and then by him to the purchaser, but contained no direct averment that at the time of the alleged fraudulent conveyance, the debtor had or pretended to have any interest in the lands: It was held bad on general demurrer. Ibid.

4. An averment that A and B were appointed and acted as administrators, without alleging that they accepted the trust, is a sufficient allegation that they were administrators.

BOARD OF COUNTY CANVASSERS.

Ibid.

1. A statement of the number of votes given at an election for the respective candidates, required to be made out and filed in the county clerk's of fice by the board of county canvassers, is prima facie evidence only of the facts stated in it. The county canvass may be corrected by the township canvasses, and these by the ballots, themselves. People v. Van Clere,

362

2. The determinaiion of the board of county canvassers of the persons elected, is prima facie evidence only of their election. Ibid.

3. A party may go behind the canvass to the ballots, if not beyond them, to show the number of votes cast for him.

4. The duties of the board of canvassers are wholly ministerial.

See PARTIES TO BILL IN EQUITY.

Ibid.
Ibid.

BOATS AND VESSELS.

1. The act to provide for the collection of demands against boats and vessels. Sess. L. 1839, p. 70, gave a new and cumulative remedy, but did not give a lien on the vessel itself until taken on the attachment; and the remedy given by that act was not reserved by sec. 2, ch. 173, R. S. (which chapter repealed the act), to a party whose proceed ings were not insti tuted under the act before its repeal such remedy not being a right accrued within the meaning of these words as used in that section. Robinson v. Steamboat Red Jacket, 171

2. Chap. 122, R. S., does not give a lien for means and supplies furnished, or for money advanced, in the building, fitting and furnishing of a vessel, The lien in such case is restricted to work done and materials fur. nished. Lawson v. Higgins, 225

3. Chap. 122, R. S., of proceedings for the collection of demands against ships, boats and vessels, applies to contracts made and injuries received within the state only, and not to such as have arisen without the state, and gives a specific lien on the boat or vessei for all such demands mentioned in the first section of the chapter. Bidwell v. Whitaker, 469

4. By the act to provide for the collection of demands against boats and vessels, Sess. L. 1839, p. 70, no specific lien is given upon the vessel, until an actual levy under the attachment; and the remedy given by the act is general, and not restricted to causes of action arising within the state. Moses v. Steamboat Missouri, 507

VOL. I.-41

BOND.

1. A bond in these words, "Know all men by these presents, that I, A. B., principal, and C. D., E. F. and G. H., sureties, are held," etc., "for the payment of which sum well and truly to be made, we bind ourselves, our heirs, executors and administrators, severally, firmly by these presents," is a joint as well as several bond. Supervisors of St. Joseph v. Coffenbury, 355

2. A bond given by the treasurer of a county for the faithful performance of his official duties, to the board of supervisors of the same county, is a good and valid bond, although there is no statute requiring such a bond to be given.

Ibid.

CERTIORARI.

1. A certiorari will not lie to remove proceedings had before a justice of the peace, under R. S. 1838, to determine whether a mill pond is unhealthful and productive of disease by reason of the decay of standing, lodged, or fallen timber. Root v. Barnes,

37 2. Where commissioners of highways laid out and established a road, and an appeal was taken from their decision to the township board, which affirmed what the commissioners had done, a certiorari sued out for the purpose of reviewing the decision of the township board, directed to the commissioners instead of the township board, was dismissed for irregularity. Goodrich v. Commissioners of Lima, 385

8. A certiorari lies to the county court to review a judgment of that court on proceedings instituted under ch. 42, R. S., as the cause cannot be carried to the circuit court of the county for review, under ch. 92, R. S. Perkins v. Superintendents, etc.,

504

See COUNTY COURT, 4.

CHALLENGES.

1. A challenge to the array must be in writing. People v. John Doe, 451 2. The most usual mode of trying the impartiality of a juror, challenged for favor, is by triers appointed for that purpose, on the demand of the challenging party, but it is not the only legal mode.

Ibid.

3. Where a juror is challenged for favor, and the challenging party, when asked by the court how he will have the challenge tried, refuses to indicate the mode of trial, it may be tried by the court by administering an oath to the juror, and propounding questions to him.

Ibid.

4. If a party or his counsel interposes a challenge for favor, or raise any other preliminary question involving an inquiry, and then neglects or refuses to move the trial or examination thereof, he thereby waives such challenge or question. Ibid.

CHANCERY.

See BILL IN CHANCERY. JURISDICTION, 4