
    Arnold vs. Nye.
    It is to be presumed from the judgment, except in the case of inferior tribunals or those not proceeding according to the course of the common law, that jurisdiction of the parties was duly obtained.
    "¿he appearance of an attorney for a defendant is to be taken.as prima facie evidence that he had authority to appear.
    '¿lie want of a seal to an execution does not render it void, and such execution may be amended.
    lu the computation of thb timo required by statute in the service of notice of an application for an order for a commission to take testimony, the day of service is to be excluded, and that on which the application is to' be made included.
    Notice of the settlement of interrogatories may be served at tbo same time with the notice of the application for a commission.
    Discretion of the Judge as to cross-examination.
    A Deputy Sheriif, after the expiration of his term of office, was permitted without any affidavit or other showiug. to endorse on a declaration served by him while in office, an amendment to his return so as to show that a copy of a rule to plead was endorsed on the copy served by him. Held, That this was error.
    Error to Washtenaw Circuit.
   Opinion by

Cooley, J.

Held, That the objection taken to the ssion 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 lace uf the recurd that Arnold was serv d with process. It is to he presumed except in the case ot inferior tiibunals or those not proceeding' according to the course of the common law, that jurisdiction of the parties was duly obtained. In this case, however, an attorney of the Court assumed to answer for the defendant and consented in writing to the rendering of the judgnient. It must be assumed, in th.e abseuce.of evidence to the contrary, that he was duly authorized to act,

Held, That the oojection to the certified traLscript, that it did not show tho execution issued on the judgment to have been under seal, is not a valid one. The want of a seal, if really wanting, might have been supplied on motion to amend, and did not render the execution void.

Held, That the Court erred in rejecting the deposition of Page. The ground of rejection was that ten full days’ notice of the application for the order for the commission was not. given as required by the statute. T he notice was of an application to be made on March 15, 18(-0, and was served on March 5. The general rule is toexclude the day service and include that on which the application is to be made, and under this rule the service was in time. The notice required in this ease comes within the general rule, and is not within the exceptions to said rule.

The defendants in error also object to the deposition that notice of the settlement of interrogatories was given at the sainé time with the notice of the application for a commission, and of course before the order for issuing the commission had been granted.

Held, That the statute does not in terms provide that the com • mission must be ordered before any steps can be taken to settle interrogatories, and there it no reason for putting such a construction upon it, as the same opinion is to decide upon the application and settle the interrogatories. It seems not improper to give such notices that the settling of the interrogatories may immediately follow the order for the issuing of the commission.

One Stowell was sworn for the defendants,' and a member of the bar was called to impeach him, and testified that he had known Stow, ell for a number of years and knew his reputation for truth and veracity in the neighborhood where he resided, and that it was bad.— Oft cross-examination he testified : “ I have had no personal difficulty with Stowell; he was a witness in the Goldsmith divorce case; T was counsel in that case.” He was then asked: “Did the judgment of the Court sustain the theory of the case to which Mr. Stowell testified ?” The question was objected to hut allowed,and the witness replied : “The judgment of the Court was in accordance with the theory testified to by Stow-ell in that case.’’

B»Jd, That very much ought to be left to the discretion of the Circuit Judge as to the extent to -which cross-examination shall be allowed, and that this decision ought not to be set aside because of the latitude of examination permitted, unless there had been a clear case of legal indiscretion. See Stewart vs. The People, decided last term. There is no reason for holding that the discretion of the Circuit Judge was exercised improperly or unwisely.

Error was also assigned in refeience 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 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 ceased to be such when the tria, was had. The certificate ot service did not show that any copy ot rule to plead was served with the declaration, and the Court, when objection was taken to the judgment on ibis ground, allowed Osborn, without any affidavit or other showing, to amend his return in such a manner as to show that a copy of rule to plead was indorsed on the copy of declaration served by him.

Held. That great liberality should always be shown 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, so that the amendment when made will represent actual fact. Evidence of service of a declaration may be made either by affidavit, or by the official return of the Sheriff, and in either case a protection against, or a remedy for, a false proof of service.— Here there was no official return of the service upon which there was legal liability. The former Sheriff cannot be liáble for the trust which he had confided to Osborn had termimated, and he no longer authorizes Osborn to use his official title for any purpose, nor would he have any remedy against any sureties he may have required oí Osborn. Neither would the amendment be made under the sanctity of an official oath, for the person making it was no longer an officer when itwas made, A showing should have been required by affidavit instead of an amendment of the official return.

The judgment of the Court below is reversed with costs, and a new trial ordered.  