
    Hiram Arnold v. Nelson B. Nye and others.
    
      Jurisdiction presumed. Ifc will be presumed in fayor of a judgment of a court of record, which, proceeds according to the course of the common law, that jurisdiction of the parties was duly obtained. '
    
      Authority of attorney presumed. Where the record of such judgment discloses that an attorney of such court assumed to answer «for a defendant, and consented in writing that judgment might be entered against him, this court will assume, in the absence of any evidence to the contrary, that such attorney was duly authorized. This would be sufficient evidence of jurisdiction of the parties.
    
      Execution not void for want of seal. The want of a seal does not render an execution void. The seal may be supplied on motion to amend. It is not, therefore, a valid objection to a certified transcript of a judgment, and the proceedings upon the same, that'it does not show that an execution issued upon such judgment was under seal.
    
      Computation of time. In computing time upon a notice of an application for an order that a commission issue to take a deposition under the statute {Comp. § l&k$) which requires such notice to be served on the adverse party ‘4 at least ten days before the making of such application,” the day of the service is excluded, and the day on which the application is to be made is included. Service on the fifth of the month of notice of an application to be made on the fifteenth is sufficient.
    
      Settlement of interrogatories to be attached to commission to take deposition. It is not a valid objection to a deposition taken under said statute that the notice of the settlement of interrogatories was given at the same time with the notice of the application for the commission, where the time fixed for the settlement of the same was subsequent to that specified for the application for the commission, and the interrogatories wore not, in fact, settled before the commission issued.
    
      Cross-examination of impeaching witness. Where an attorney at law has heen called as a witness to impeach another witness, and has testified against his reputation for truth and veracity, and on cross-examination has further testified that he had occasiou once to impeach said witness in a divorce suit, wherein he was counsel, and said witness was a witness against him, and he was thereupon asked whether the judgment of the court in that case sustained the theory of the case to which said witness testified, and was allowed, under objection, to answer, this court will not hold that the discretion of the circuit judge was exercised improperly or unwisely in admitting such answer. His decision ought not to be set aside because of the latitude of cross-examination permitted in such a case, unless there has been a clear abuse of legal discretion. — Stewart v. People, S3 Mich., 63.
    
    
      Amending return of service. Where a judgment, which has been taken by default on a service of a declaration by a deputy sheriff, and the certificate of service does not show that any copy of rule to plead was served with the declaration, is objected to on tills ground when offered in evidence in another cause, it is error to permit the person who made such service without any affidavit or other showing, after he has ceased to be such deputy sheriff, to amend his return so as to make it show that a copy of rule to plead was indorsed on the copy of the declaration so served by him. Such amended certificate did not constitute any official return of the service of rule to plead, upon which there was legal liability. A proof of service by affidavit should have heen required instead of such amendment.
    
      What not a material variance. Where a notice of special matter of defense attached to a plea sets up a judgment against A, and the record of a judgment, which was originally against A and W, but which had heen amended by a subsequent order reciting that it appeared to the court that W was indorser of the promissory note declared upon in said cause, and was not served with the declaration therein, and directing the entry of said judgment to he so amended that the name of saidW be stricken therefrom, and that said judgment stand against the said A, and which was in other respects the same as the judgment described in said notice, except a slight variation in the amount, is offered in evidence, together with said order, the objection to such evidence that it varies from the judgment set up in the notice is untenable.
    
      Heard May 6.
    
    
      Decided July 12.
    
    
      Error to Washtenaw Circuit.
    This was an action of trespass brought by Hiram Arnold, against Nelson B. Nye, John C. Mead, Reuben Boss, George M. Osborn, John N. Gott, Amos C. Blodgett, 'John S. Henderson, Jonathan Sprague, and William A. Moore, for taking and carrying away certain goods and chattels belonging to said plaintiff. The defendants justified as follows, viz: The defendant Nye, as deputy United States marshal of the district of Michigan, and the defendants, Boss, Henderson and Sprague, as his assistants, and the defendant Moore, as Clark’s attorney, by virtue of an execution against James Arnold, upon a judgment in favor of Thomas Clark, in the circuit court of the United States for the district of Michigan ; the defendant Mead, as sheriff of said Washtenaw county, and Osborn as his deputy, and the defendant Gott, as Sterrott and Kenyon’s attorney, by virtue of an execution, subsequent to said execution .in favor of said Clark, against James Arnold, .upon a judgment in the circuit court for said Washtenaw county, in favor of David Sterrott and James Kenyon. A discontinuance was entered as to defendant Blodgett. The cause was tried by a jury.
    On the trial, the plaintiff gave evidence tending to maintain and prove the issue on his part, and that the value of the goods taken was about seven thousand dollars. The said defendants, to maintain and prove the issue on their part, offered in evidence a transcript of the judgment and proceedings, including the execution and return thereto, in the case of Thomas Clark, plaintiff, against James Arnold, defendant, in the circuit court of the United States, for the district of Michigan, with the certificate of the clerk of said court, that the same was a true and correct transcript of the record and proceedings of said court, in that case, and of the whole thereof.
    
      [The objections to the admission of the record of said judgment and proceedings, and the- ruling of the court thereon are sufficiently stated in the opinion.]
    The counsel for defendants further offered in evidence the journal entry of. a judgment in the circuit court for the county of Washtenaw, rendered on the 6th day of June, 1857, in favor of David Sterrott and James Kenyon against James Arnold and John S. Wright, for the sum of $1,682.16, besides costs to be taxed. The counsel for defendants also offered the files of the said court in that case, an execution dated June 22, 1857, reciting a judgment of that court, for that amount, in favor of. said Sterrott and Kenyon, against said James Arnold, directed to .the sheriff of the county of Washtenaw, and in the usual form, upon which was entered the return of John 0. Mead, sheriff, showing a levy on the 22d day of June, 1857, upon the goods in question and a sale of a portion thereof, and also an order of said circuit court, in said cause, dated September 13, 1859, as follows, viz:
    “In this cause, it appearing to> the court that said defendant, John S. Wright, was indorser of the promissory note declared upon in this cause, and was not served with declaration in said cause, it is therefore ordered, on motion of John N. Gott, attorney for plaintiffs, that the entry of the judgment in said cause be so amended that the name of the said John S. Wright be. stricken therefrom, and that said judgment stand against the said James Arnold.”
    It appeared from said files that the suit was commenced by declaration, and the return of George M. Osborn, deputy sheriff, set forth that on April 17, 1857, he served said declaration on said James Arnold personally, by. delivering to him a true copy of said declaration. Th.e plaintiff’s counsel objected to the introduction of such evidence, that there was no such judgment, as that offered, set pp in the notice of any defendant, either in respect to parties or amount, the judgment being against Arnold and Wright, the execution being against Arnold alone, and the amount of damages in the judgment and execution being one thousand six hundred and eighty-two dollars and sixteen cents, and the amount of the damages as alleged in the notice, being one thousand six hundred and eighty-five dollars and sixteen cents; that there was no judgment to authorize the issuing of said execution against James Arnold as sole defendant, and that it appeared from the return of George M. Osborn, deputy sheriff, that the only service on the said James Arnold was made by delivering to him personally a copy of the declaration, without notice of any rule to plead, and insisted that said court had no jurisdiction to render said judgment, or issue said execution, and that the evidence was not relevant to the issue. The court overruled each of said objections, and the counsel for the plaintiff excepted.
    The said defendants having introduced evidence tending to show that the goods in question had been obtained by the plaintiff from James Arnold, through a fraudulent sale in the fall of the year 1855, the said plaintiff offered in evidence the deposition of Frank D. Page, on file in said cause. [The objections to this deposition and the ruling thereon sufficiently appear in the opinion.]
    It was shown by other evidence that the portion of the property, received by the plaintiff from James Arnold, was levied upon by the sheriff of the county of Wayne, at Detroit, by virtue of a writ of attachment, in favor of John F. Kimball against James Arnold, issued out of the circuit ■court for the county of Wayne, and that Hiram Arnold having purchased said property so attached, of said James Arnold, and claiming to be the owner and possessor thereof, gave to said sheriff, in order to obtain possession of said goods, a bond executed by him, the said Hiram, as principal, and William O’Hara as surety, conditioned' that said attached property should be produced to satisfy any execution that should be issued on any judgment to be recovered by the said John F. Kimball, upon such attachment; that afterwards and on the 26th day of March, 185'6, said John F. Kimball recovered judgment in said suit against said James Arnold, for the sum of one thousand four hundred and thirty-two dollars' and nine cents damages, and twenty dollars and fifty cents costs; that afterwards judgment was recovered by the said John F. Kimball, ’on said bond, against said Hiram Arnold and William O’Hara, for the amount of said judgment and costs of suit, and that said last mentioned judgment was collected . of said Hiram Arnold.
    Alexander H. Stowell was called as a witness for defendants and gave material evidence in their behalf. [The objections and rulings as to the cross-examination of the witness called by the plaintiff to impeach said Stowell, are fully set forth in the opinion.]
    After the testimony in the case was closed and the plaintiff’s counsel had made his opening argument, the defendants’ counsel applied to the court, without previous notice, for leave to said defendant Osborn, former deputy sheriff, as aforesaid (but whose term of office had expired, and who was not then an officer), to amend said return to said declaration in the case of Sterrott and Kenyon against said Arnold and Wright, by inserting therein words alleging a service on said James Arnold of notice of the entry of a rule to plead to said declaration.
    The plaintiff’s counsel objected, but the court allowed said Osborn to make such amendment, and to give the" said return as amended in evidence to the jury, to which the plaintiff’s counsel excepted. The verdict was for the plaintiff for the. sum of four hundred dollars, and judgment was rendered in his favor accordingly. The plaintiff brings the cause to this court by writ of error.
    
      H. J. Beakes for plaintiff in error,
    as to the rule for computing time, cited: — Circuit Court Rule 15; King v. Justices of Cumberland, 4 Neville & Manning, 378 ; Anderson v. Baughman, 6 Mich., 298 ; Charles v. Stansbury, 3 Johns., 261 ; Gillespie v. White, 16 Johns., 117; Columbia Turnpike Road v. Haywood, 10 Wend., 424; Dayton v. McIntyre, 5 Howard, Prac. R., 117; Ex parte Dean, 2 Cow., 605 ; Rex v. Adderly, Doug., 463; Castle v. Burdett, 3 T. R., 623 ; Arnold v. U. S., 9 Cranch, 104; 13 Am. Law Register, 4th New Series, 222, 223.
    
    
      John N. Gott and Moore & Griffin, for defendants in error.
   Cooley, J.

The objection taken to the admission in evidence of the judgment in the federal court against James Arnold, in favor of Clark, has no force. The ground of the objection was, that it did not appear on the face of the record that Arnold was served with process. But this was not essential $ except in the case of inferior tribunals or those not proceeding according to the course of the common law, it is to be presumed that jurisdiction of the parties was duly obtained. In this case, however, it was not necessary to stand upon that presumption, as jurisdiction affirmatively appeared. An attorney of the court assumed to answer for the defendant, and consented in writing that judgment might be entered against him. We must assume, in the absence of any evidence to the contrary, that he was duly authorized, and it is not necessary for us to say in this case, how the judgment would be affected by evidence that in fact the attorney had appeared in the case without authority

Nor was it a valid objection to tbe certified transcript, tbat it did not show the execution issued on tbe judgment to bave been under seal. The want of a seal, if one was really wanting, might bave been supplied on motion to amend, and did not render tbe execution void.

Tbe court was clearly in error, we think, in rejecting tbe deposition of Page. Tbe ground of rejection appears to bave been tbat ten full days’ notice of tbe application for tbe order for tbe commission was not given as required by tbe statute. Tbe statute requires notice of application for such order to be served on tbe adverse party “at least ten days before tbe making of such application.” — Comp. L., § Tbe notice in this case was of an application to be made on the 15th day of March, 1860, and was served on tbe fifth day of tbat month. If tbe time is to be reckoned exclusive of tbe day of service, and inclusive of tbat on which tbe application was to be made, tbe time was sufficient. Tbat this is tbe general rule for computing time, is abundantly shown by tbe authorities cited for the plaintiff in error, and we bad occasion to apply the rule at tbe last term, in tbe case of Warren v. Slade [supra, page 1], arising under tbe statute of limitations. ■ Tbe exceptions are of those cases in which, by tbe express terms of a statute or rule, tbe day on which an act is to be done is excluded; as in the case of our statute regarding notices of trial {Comp. L., § in which case, as the general rule would exclude tbe day of service also, there must be tbe requisite number of full days intermediate tbe day of service and tbe day the court is to be held. — Dousman v. O’Malley, 1 Doug. (Mich.), 450. Tbe case of Sallee v. Ireland, 9 Mich., 154, was thought by this court to fall within the exception to this rule; tbe statute in question, in that case requiring a previous service of process of “not less than three” days, which tbe court were of tbe opinion meant three full days, exclusive of fractions, and consequently the day of return could not be counted as one. A requirement of “not less than three days” may very well be held to demand three full days; but if we follow the authorities, we must hold that a requirement of a nptice “at least ten days before the making of the application,” means only that notice shall be given as early as the tenth day before the application is made. The computation is made by excluding the first day and including the last, taking no notice of fractions.— Charles v. Stansbury, 3 Johns., 261; Columbia Turnpike v. Haywood, 10 Wend., 424.

The defendants in error make a further objection to the deposition, which, though not passed upon by the circuit court, they insist is sufficient to justify its rejection. This objection is, that notice of the settlement of interrogatories was given by the plaintiff at the same time with the notice of application for a commission, and, of course, before the order for issuing the commission had been granted. The defendants insist that the commission must be ordered before any steps can be taken to settle interrogatories. The statute does not in terms so provide, and we know of no reason for putting such a construction upon it. Commissions are ordered in such cases, almost of course, and although the opposite party could not be required to appear on the settlement of interrogatories before the commission had been granted, yet we see no conclusive objection to the notice of settlement of the interrogatories being given in advance, if the time fixed for the purpose is not earlier than that specified for the application for the commission. As the same officer is to decide upon the application and settle the interrogatories, it seems not improper to give such notices that the one act may immediately follow the other.

Another error assigned relates to the cross-examination of an impeaching witness. One- Stowell, it appears, was sworn for the defendants, and a member of the bar was called to impeach him, and testified that he had known Stowell for a number of years, and knew his reputation for truth and veracity in the neighborhood where he resided, and that it was bad. On cross-examination he testified: “I have had. no personal difficulty with Stowell. He was a witness in the Goldsmith divorce case. I had occasion to impeach him. I was counsel in that case.” He was then asked: “Did the judgment of the court in that case sustain the theory of the case to which Mr. Stowell testified ? ” This question was objected to, but allowed, and the witness replied: “The judgment of the court was in accordance., with the theory testified to by Stowell in that case.”

In Stewart v. The People [supra, page 63}, decided at the last term, we had occasion to consider the liberality of inquiry proper to be allowed in the examination of witnesses where an attempt is made to impeach; and we then held that very much ought to be left to the discretion of the circuit judge, whose decision ought not to be set aside because of the latitude of examination permitted, unless there had been a clear abuse of legal discretion. We think that decision applicable in this case. We cannot clearly perceive that the fact that the court in which Stowell was sworn sustained the theory which was supported by his evidence, should have had any influence on the question of his impeachment. It might or might not indicate that the court was satisfied he was not impeached, for there might or might not have been other satisfactory evidence to the -same effect as his. But when the evidence may or may not have been significant, according to circumstances, arbitrary rules of admission and exclusion would be likely to work injustice in some cases, and be embarrassing in all, and consequently should not generally be allowed. In this case we think there is no reason for holding that the discretion of the circuit judge was exercised improperly or' unwisely.

The only other error assigned, which we think we have occasion to notice, relates to the action of the court in suffering an amendment to be made in support of one of the judgments under which the defendants justified. The judgment, it appears, was one taken by default on a service of declaration made by the defendant, Osborn, who, when service was made, was a deputy sheriff, but who had ceased to be such when the trial was had. The certificate of service did not show that any copy of rule to plead was served with the declaration; and the court, when objection was taken to the judgment on this ground, allowed Osborn, without any affidavit or other showing, to amend his return in such manner as to show that a copy of rule to plead was indorsed on the copy of the declaration served by him.

Great liberality should always be shown by courts in permitting amendments in furtherance of justice; but when a record is to be corrected under circumstances like these, all due precautions should be observed to have proper evidence that the amendment when made will represent the actual fact. Evidence of the service of a declaration may be made either by affidavit — in which case the criminal law is supposed to furnish due protection against a false oath of service — or by the official return of the sheriff— upon which the party will have his remedy if it prove untrue. There was also no affidavit in this case. Was there any official return of the service of rule to plead upon which there was legal liability? We think not.

Osborn was only deputy sheriff, and while in office acted in the name of, and as deputed by, his principal. He must be presumed to have taken -an oath to perform his official duties faithfully, and may have been required by the sheriff to give bond with sureties, to protect his principal against liability for his acts. His oath is supposed to constitute some security to the public and to interested parties that his returns shall be truthfully made, but it is to his principal that they -will chiefly look, as the officer specially chosen for his- capacity and trustworthiness to perform the important duties devolving upon the office. But Osborn, while in office, had made no return, under oath, of the service of this rule to plead; and consequently no liability had been incurred, either by himself to his principal, or by the principal to the defendant in the suit, in respect to any such service. If Osborn can now be allowed to make return in the name of his former principal, that he made due service of the rule to plead while he remained deputy, it becomes pertinent to inquire what one of the sanctions which the law gives to the official returns of an officer there can be in the case. Certainly the amended return will not be made under an official oath, for the person making it is no longer an officer; the former sheriff cannot be liable for its falsity, for the trust which he confided to Osborn has terminated, and he no longer authorizes that person to make use of his official title for any purpose; and if the principal could be liable, he would have no remedy over against any sureties he may have required of Osborn, for such sureties would only undertake for Osborn’s official acts, and not for what he might assume to do after his official functions had terminated, and when, perhaps, as well his former principal as the, sureties may have ceased to be willing to assume responsibilities on his behalf.

In every view we can take of this amendment, we think the court erred in permitting it to be made. The service having been by one no longer in office, a showing by affidavit should have been required, instead of an amendment to the official return.

We do not understand the objection, which was taken to the order of the court, permitting an amendment of the judgment by striking out the name of Wright, to be now insisted upon, but if it is, we think it untenable.

The judgment of the circuit court should be reversed, with costs, and a new trial ordered.

Christianoy, J., and Campbell, Ch. J., concurred.

Grates, J., did not sit in this case.  