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JEROME v. WILLIAMS.

judgment might be sued separately, when the stay had not even matured. McDonald v. Butler, 3 Mich. R. 558. And under the present statutes just referred to, an execution may be on the judgment, or rity, or on both. - §3788.

on the secu

It is worthy of some consideration whether a party who files a transcript only, and proceeds on that, can subsequently file the stay. Such a question cannot easily arise under our present laws, which declare expressly that the entry of stay shall have the effect of judgment, so that the transcript will always include this.—2 C. L., §3804.But if it be not a judgment, then there is no law which undertakes to vary its effect from what it was in the Justice's Court, except so far as a Circuit Court execution reaches property not reached by an execution from the inferior Court.

The case then presents this position: It appears that until September 12, 1864, and how much later is uncertain, the stay had lain dormant. No suit had been brought upon it, and more than six years had elapsed since the last execution on it had been returned unsatisfied. There can be no question but that it was barred by the statute of limitations, so that no action would lie upon it, being a simple writing.-2 C. L., §5361.Had it been an ordinary Justice's judgment it would have been barred by the same section. This proceeding to renew an execution is, in effect, so far as this stay is concerned, an attempt to establish a claim which could not be sued upon because barred by time. This summary proceeding is a substitute for a scire facias, and does not differ in its nature from a formal action. The scire facias, in personal actions, was only a substitute itself for an action upon judgment.-2 Inst., 469. We think, therefore, that where the delay in issuing execution has rendered it necessary to apply for leave, the Court can not properly grant it where such

FACEY . FULLER.

delay has intervened that no action would lie. It is not necessary for us to decide how far the nature of a Justice's judgment is affected by filing a transcript, so as to change the statutory limitation, as the case comes up on the stay only, which is clearly barred.

The order of the Court below, in so far as it allows an execution against Jerome, must be quashed with costs. COOLEY and CHRISTIANCY JJ. concurred.

MARTIN Ch. J. did not sit in this case.

Richard A. Facey v. Ezbon G. Fuller.

user.-The

Public office-legal right of incumbent cannot be attacked collaterally-proof of actual legal right of one who is the incumbent of an office cannot be tried in a collateral action between third parties, and in such case the mere proof of user by any one who knows the fact will be sufficient to give full sanction to his acts.

Certificate of a Justice to a transcript of judgment—its effect. Where a Justice, in pursuance of the statute, (2 Comp. Laws, $3893,) certifies a transcript of a judgment from the docket of a former Justice, which he certifies is in his control, full credit will be given to such certificate, and it will be presumed that the docket is legally in his possession.

Evidence-docket entries of a Justice may not be disproved. In a suit upon a Justice judgment, the docket entry of the Justice, that the defendant appeared and pleaded in such action, cannot be disproved.

Heard October 10.

Decided October 24.

The facts sufficiently appear in the opinion.

W. S. Geer, for plaintiff in error:

1. There is no legal proof that the paper offered was a transcript from the docket of any Justice of the Peace in Branch County, or any other county of this State. There is no clause in our statute authorizing Porter to certify that Morehouse was formerly a Justice of Branch County, of this State. Porter, at most, could

FACEY V. FULLER.

only certify to the correctness of the copy of judgment; the balance was merely surplusage, and of no legal force, whether objected to or not. And, further, there was no testimony given showing that the signature of Porter was genuine, and no person was called who had official knowledge of said Porter's judicial functions, and the certificate does not carry with it the smallest degree of legal evidence that Morehouse was ever a Justice of Branch County, and, as such, rendered said judgment.

2. The want of jurisdiction may be shown by evidence, even where it tends to contradict the minutes or dockets which are kept by Justices of the Peace as records of their proceedings. -Clark v. Holmes, 1 Doug., (Mich.,) 390.

This judgment had been rendered over five years before the plaintiff ever had any knowledge of its existence, as by him claimed. What remedy has the plaintiff in error, except to inquire into and contradict the jurisdictional facts therein recited?-Sec 4 Selden N. Y. R., 57, and cases there cited. Chemung Canal Bank v. Judson, 4 Selden, 254, is directly in point. In this case Judge Ruggles says: power of this Court to inquire into the jurisdiction of the District Court of the United States is undoubted." Also, see 19 Johns., 39; 8 Wend., 569; 18 Pick., 393; 1 Exch., 1.

"The

"No officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends."-Harrington v. People, 6 Barb., 607; 5 Barb. S. C. R., 607.

The minutes made by a Justice of the Peace in making a record of a judgment taken before him are only prima facie evidence of the facts therein stated on which jurisdiction depends.-6 Barb., 607.

The objection taken was that the record could not be contradicted by parol testimony. This objection impliedly admits that a certain other class of testimony

would be admissible.

FACEY . FULLER.

If any testimony is admissible, the testimony that was offered should have been received, for the reason that it was impossible for the Court to say to what extent the plaintiff in error might have followed up his offer. This Court will not presume that the testimony offered was all that the plaintiff in error could have produced upon this subject.12 Mich., 452.

or record

Fraud and collusion will vitiate the return of any officer. Neal et al. v. Granger, 8 Mich., 450.

E. G. Fuller, in person:

Every Justice of the Peace shall keep a docket, in which he shall enter certain enumerated items.-Comp. Laws, §3890.

The original entry of the judgment or other proceedings, or a transcript certified by him, is good evidence. thereof. Comp. Laws, §3892.

And "a transcript from the docket of any Justice of the Peace of any judgment had before him, of the proceedings in the cause previous to such judgment, of the execution issued thereon, if any, and of the return of such execution, if any, when certified by the Justice having control of the docket, shall be evidence to prove the facts stated in such transcript." —Comp. Laws, §3893.

Thus it appears a Justice Court, though not a court of record, because it has no seal, is authorized to keep a docket, and being clothed with common law jurisdiction for the trial of causes, such docket, "although not technically a record, is at least elevated to the dignity of a speciality;" "it has all the effects of a record.” — Niles v. Totman, 3 Barb., 594; Rood v. School Dist. No. 7, of Town of Bloomfield, 1 Doug., 502.

(The following cases were cited as sustaining the point that a Justice docket, as to the appearance and plea of a defendant, cannot be collaterally disproved.)-23 Maine, 114; 12 Vt., 538; Id., 657; 35 Maine; 1 Richardson,

FACEY v. FULLER.

147; 3 Whart., 159; 3 Barb., 597; 4 Shep., 18; 4 Dana, 499; Stohoff v. Dunham, 4 Harr., 181; Smith v. Shockleford, 9 Dana, 452; Brintnall v. Foster, 7 Wend., 103; Mc Carty v. Marsh, 1 Seld., 263; Dyckman v. The Mayor of New York, 1 Seld., 434; Seldon v. Wright, 1 Seld., 497; Stevens v. Maugum, 27 Miss., 481.

I am unable to see any reason why the sworn judgment entries of Justices of the Peace in this State, (such as they are required to make,) with their enlarged jurisdiction, "vested with all such powers as are usual in courts of record, except the power of setting aside a verdict and arresting judgment thereon," (Comp. Laws, $3656,) should be open to contradiction by parol, when the entries of a clerk of the circuit are not. They, at least, ought to be considered as sacred as judgment records of another State, (Wilcox v. Kassick, 2 Mich., 165,) or a constable's return.

There is no force in the objection to the introduction of the transcript. It is perfect; and the certificate of A. L. Porter, the Justice who had control of Morehouse's docket, in every particular, complies with the statute. The transcript recites all that is necessary to give the Justice jurisdiction both of the person and subject matter, and the judgment is in due form. The certificate of Porter, which was in evidence, and returned to this Court, shows most conclusively the county and State where the judgment was rendered. A docket from any other county or State would not be "under his control;" at least, there is a fair presumption raised that such judgment was rendered in the County of Branch. Certainly there is no denying that Porter was a Justice of the Peace in the County of Branch, and State of Michigan, and had control of Morehouse's docket. Then it follows that the transcript certified by him “should be evidence to prove the facts stated."-Comp. Laws, $3893.

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