HOSMER v. WILSON.

opinion, that the plaintiff was allowed to retain his verdict upon the special count. And we have the high authority of Lord Campbell that such was the case.-See Hochster v. De Latour, 20 E. L. & Eq. 163, above cited. As the conclusion at which we have arrived upon this point disposes of the whole case, it becomes unnecessary, and even improper, to discuss the other questions raised in the case.

And, as we do not conceive that under a writ of error we have any power to amend the declaration in this respect, the judgment must be reversed.

The other Justices concurred.

Cornelius O'Flynn and Another v. James E. Eagle and

Another.

A motion based upon the irregular action of the opposite party must be made at the earliest opportunity, and will not be entertained after the lapse of a term, unless some very satisfactory reason is shown for the delay.

The court will not require attorneys to produce their authority to prosecute a writ of error on behalf of one of the plaintiffs, when there is no showing that they are not duly authorized, and, on the contrary, it appears that the attorneys were employed by the other plaintiff to take charge of the case generally, and that the one so employing them was, in fact, the party responsible in the case, and bound to protect the other from liability.

Costs on motions are allowed the prevailing party as a matter of course, unless some special reason is shown why they should not be imposed.

Where an amendment has been made in the court below, since the cause was removed to this court by writ of error, but no further return has been had, the court cannot entertain a motion, based upon such amendment, on affidavit that such an amendment has been made.

Heard October 18th. Decided October 19th.

Error to Wayne Circuit. The writ was sued out by Holbrook & Bishop as attorneys for Cornelius O'Flynn and Daniel Finn, as plaintiffs in error, returnable April 5th, 1859, and was duly returned. Assignment of errors was filed May 28th, 1859.

S. Towle, for defendants in error, now moved for an order

O'FLYNN v. EAGLE.

on Holbrook & Bishop, requiring them to produce their authority to prosecute the writ on behalf of Daniel Finn, and that the writ be dismissed on default in producing such authority-O'Flynn having failed to take proceedings in due time to serve in the prosecution of the writ. It appears from affidavits on which the motion was founded, that on September 13th, 1859, defendants in error inquired in writing of plaintiffs' attorneys whether they professed to represent Finn in this case, and if so, what was their authority for so doing: that Mr. Holbrook replied verbally that they did profess to represent Finn, but had no authority, verbal or written, from him, and did not know him, and had been employed by a son of defendant O'Flynn, in his father's absence, to attend to the case that they thereupon, in like manner, made the same inquiries of O'Flynn and his son, the latter of whom referred them to his father, and the former declined to reply. One of defendants in error also made affidavit that he did not believe said attorneys had any authority to appear for Finn in the case, for the following reasons: that the action in the court below was against Finn and O'Flynn on a note made by the former and endorsed by the latter, but which the latter had assumed to pay: that judgment was recovered, execution issued and levied upon the property of O'Flynn: that Finn left the state before the writ of error was issued, and has not returned: that the sureties in the bond given on suing out the writ are the relatives and friends of O'Flynn ; and that O'Flynn and Finn are not on friendly terms; and that the deponent believes Finn would release errors in the case if he were here.

The error assigned in the case is that no process was served on Finn.

That the presumption that attorneys appear by authority may be rebutted by affidavit, and they required to show their authority, Mr. Towle cited 4 Duer 637; 3 T. B. Monr. 194; 12 Ill. 132, 488; 2 Sel. Pr. 364; 4 How. (Miss.) 333; 8 Fost. 302; 3 Harr. 15;12 Wash. 429; 2 Pike 355; 3 Yerg. 325.

O'FLYNN v. EAGLE.

D. C. Holbrook, contra.

BY THE COURT:

We can not entertain this motion. The assignment of errors was filed in May, while this court was in session. A full term has elapsed since, and unless some very satisfactory reason is shown for the delay, we do not entertain motions, based upon irregularities, after the lapse of a term.

But the affidavits themselves we think are insufficient. There is no positive showing here that the attorneys are not properly employed on behalf of Finn, but, on the contrary, the affidavits disclose the fact that O'Flynn is the real party in interest, and bound to protect Finn from liability. He was bound, therefore, to take the necessary steps for that purpose, as he is doing. Finn does not positively object, and ought not to; and it may be doubtful if the court should permit him to release errors in such a case if he should come here for the purpose. The motion must be denied.

Towle said the case was a hard one upon the defendants in error, their demand being indisputably just, and he thought they should not be charged with costs on the motion.

THE COURT:

We give costs in all such cases as a matter of course, unless some special reason is shown why they should not be imposed.

On a subsequent day, on affidavit that, since the cause was removed to this court, the court below, on motion of defendants in error, had amended the record so as to show judgment against O'Flynn only;

Towle moved to dismiss the writ of error, claiming that this amendment removed the only error complained of in the case.

BY THE COURT:

We can not hear such a motion on affidavit. The record,

O'FLYNN v. EAGLE.

as we have it before us, shows a judgment against O'Flynn and Finn both. We can only be informed of amendments was sent up, by a further return to the

made since that

writ of error.

John M. Wattles v. John Warren and Another.

The Court will not set aside a writ of error for want of a proper return, after the lapse of several years, during the most of which time the papers have been in possession of counsel for defendant in error, and joinder in error filed while the counsel had the return in his hands.

Error to Lapeer Circuit.

Heard October 18th. Decided October 19th.

T. Romeyn, for defendants in error, moved to set aside the writ of error in this case for want of a return. The writ was made returnable at the October term, 1852, and was returned with papers attached purporting to be a copy of proceedings in the Circuit Court for Lapeer county, but not in any way authenticated by the seal of the court, or the signature of the clerk, and without any return endorsed on the writ.

M. Wisner, contra, read affidavits showing that the papers attached to the writ are in the hand-writing of the clerk of the circuit court; that issue in error was joined October 5th, 1852; that on Sept. 27th, 1852, the then counsel for defendants in error asked and obtained of the plaintiff's counsel leave to take the return from the files, for the purpose of preparing for the argument; that said counsel soon afterwards left the state without returning the papers; that plaintiff's counsel have been unable to obtain them back until within the last three months, and that, in consequence, it has been impossible to bring the case to argument.

Romeyn, claimed that the supposed return was an entire nullity, and that plaintiff in error could not proceed further without leave of the court to obtain a return. This leave,

WATTLES V. WARREN.

he claimed, should not be given unless it appeared that there were merits in the case, which, he insisted, the assignment of errors would show was not the case here.

THE CHIEF JUSTICE:

This application comes too late. Issue in error was joined while the counsel had the papers in his hands, and there would be no equity in granting the motion after this long delay for which plaintiff in error is not responsible. Whether there are merits in the case, is a question to be discussed at the hearing.*

*See Evans v. Norris, 6 Mich. 69.

Motion denied.

George J. Dorr et al. v. George H. Clark.

An affidavit stating that both defendants in attachment reside in New York, and have not resided in Michigan for three months, will be construed to refer to the defendants, and each of them, and is sufficient.

Since the amendatory act of 1850 (Comp. L. §404), the deputy county clerk has general authority to perform the duties of his principal. And, therefore, an affidavit for attachment sworn to before him is good, though it does not appear that the clerk was absent at the time.

An assignment by the sheriff to the plaintiff of an attachment bond is a thing which the plaintiff may require as a matter of right, and is valid if signed by the sheriff, though not in his name of office.

It is no defense to an attachment bond, on which property has been delivered by the sheriff to the bondsmen, that the property did not belong to the defendants in the attachment, or was encumbered. Parties bonding property under the statute, must take it on the statutory conditions.

Submitted on Briefs October 15th. Decided October 21st.

Error to Saginaw Circuit. The case is sufficiently stated in the opinion:

Webber & Wheeler, for plaintiffs in error:

4

1. The affidavit for attachment was insufficient. It may have been literally true, and yet one of the defendants a